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ELRCPartially AllowedCause No. 236 of 2015· [2016] KEELRC 816 (KLR)

Joseph Waweru Njururi v Kirsam Enterprises Limited [2016] KEELRC 816 (KLR)

Employment & Labour Relations Court of Kenya
19 July 2016
2,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who denied employing a worker lost because it kept no written employment records, and had to pay for firing him without notice or a hearing.

What this practically means

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Executive summary

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The claimant, Joseph Waweru Njururi, sued Kirsam Enterprises Limited claiming he was employed as a labourer from 1st April 2012 at an initial wage of Kshs. 2,400 per month, rising to Kshs. 4,800, and was orally terminated on 20th May 2015 after demanding leave, overtime pay and a salary increment. He sought a declaration that the termination was unlawful, unprocedural and unfair, Kshs. 422,518.737 in terminal dues (notice, leave, service pay, underpayment, house allowance, overtime and twelve months' compensation), costs, interests and a certificate of service. The respondent denied ever employing the claimant, asserting no contract of service existed, and sought dismissal with costs. The matter proceeded by written submissions, and the court framed four issues: existence of employment, fairness of termination, entitlement to relief, and costs. Relying on section 10(7) of the Employment Act, demand letters exchanged between the parties, and the absence of any employer records to rebut the claim, the court found on a balance of probability that an employment relationship existed. It held the termination unlawful because the respondent gave no notice, never explained the reasons for termination, and denied the claimant a hearing, contrary to sections 35, 41 and 45 of the Employment Act. The court awarded one month's pay in lieu of notice (Kshs. 4,800) and six months' compensation for unlawful termination (Kshs. 28,800), totalling Kshs. 33,600, with costs to the claimant. The other heads of claim were not addressed in the final orders.

Key legal issues

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01

Whether an employment relationship existed between the claimant and the respondent

Holding

The court found that an employment relationship existed on a balance of probability, relying on demand letters from the claimant and KUCFAW and the employer's failure to produce written employment records.

Reasoning

The claimant testified he worked as a labourer from 1st April 2012, selling gas and banking for the respondent. The respondent denied employing him but produced no employment records. The court applied section 10(7) of the Employment Act, placing the burden of proving or disproving employment terms on the employer who failed to produce a written contract, and found the demand letters to be credible indicators of an employment relationship.

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02

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was unlawful and unfair because the respondent gave no notice, did not explain the reasons for termination, and denied the claimant an opportunity to be heard.

Reasoning

The claimant was terminated orally on 20th May 2015 after demanding leave, overtime pay and salary increment. The court found the respondent breached sections 35, 41 and 45 of the Employment Act by failing to give notice, failing to explain reasons in a language the claimant understood, and failing to accord him a hearing before termination.

p. 6
03

Whether the claimant is entitled to the relief sought

Holding

The claimant was awarded one month's pay in lieu of notice and six months' compensation for unlawful termination, totalling Kshs. 33,600.00, far less than the Kshs. 422,518.737 claimed.

Reasoning

Upon finding unlawful termination, the court held the claimant entitled to relief and exercised discretion under the Employment Act to award one month's notice pay and six months' compensation. The other heads of claim (leave, service pay, underpayment, house allowance, overtime) were not expressly addressed in the final orders.

p. 6

Legal principles established

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  • Where an employer fails to produce a written contract or written particulars of employment in legal proceedings, the burden of proving or disproving an alleged term of employment lies on the employer.
  • A contract of service may be oral, written, expressed or implied, and demand letters exchanged between the parties can serve as indicators of an employment relationship.
  • Unfair termination requires both substantive justification and procedural fairness; the employer must explain reasons for termination to the employee in a language the employee understands and accord the employee a hearing.

Court orders

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  1. 1.One (1) month's pay in lieu of notice of Kshs. 4,800.00
  2. 2.Six (6) months compensation for unlawful termination of employment of Kshs. 28,800.00
  3. 3.Total award of Kshs. 33,600.00
  4. 4.The costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007Section 2 (definition of contract of service)
  • Employment Act, 2007Section 7
  • Employment Act, 2007Section 8
  • Employment Act, 2007Section 9(2)
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 27(1)
  • Employment Act, 2007Section 28(1)
  • Employment Act, 2007Section 35(b)
  • Employment Act, 2007Section 41(1) and 41(c)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 49(c)
  • Employment Act, 2007Section 51
  • Labour Institutions ActSection 15(c)
  • Constitution of Kenya, 2010Article 41 (right to fair labour practices)

Cases cited (4)

  • Edward Isedia Mukasia Vs. Eldo Supermarket Limited
  • Meschak Kiio Ikulume v Prime Fuels Limited
    Industrial Cause number 196 of 2013
  • Walter Ogal Onuro Vs. Teachers Service Commission
    (2013) eKLR
  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    (2013) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment & Labour Relations Court under Article 162(2) of the Constitution (employment dispute under the Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Waweru Njururi v Kirsam Enterprises Limited [2016] KEELRC 816 (KLR)", Case Analysis (2016). Cause No. 236 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/816/eng@2016-07-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.