Joseph Waweru Njururi v Kirsam Enterprises Limited [2016] KEELRC 816 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an employment relationship existed between the claimant and the respondent
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.
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.
Whether the termination of the claimant's employment was wrongful, unfair and unlawful
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.
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.
Whether the claimant is entitled to the relief sought
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.
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.
Legal principles established
#- 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
#- 1.One (1) month's pay in lieu of notice of Kshs. 4,800.00
- 2.Six (6) months compensation for unlawful termination of employment of Kshs. 28,800.00
- 3.Total award of Kshs. 33,600.00
- 4.The costs of the claim to be borne by the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.