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ELRCPartially AllowedNot stated in judgment· [2016] KEELRC 999 (KLR)

Justin Onyisi Mangera v Hotel Dados [2016] KEELRC 999 (KLR)

Employment and Labour Relations Court
30 June 2016
DMD.K. Njagi Marete
1,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer's contradictory evidence proved unfair dismissal, awarding the worker notice pay, leave pay and eight months' compensation.

What this practically means

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Executive summary

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The claimant sued the respondent, sued as administrator of the estate of Daniel Omare trading as Hotel Dados, alleging that his four-year employment earning Kshs. 13,000.00 per month was terminated on 7th December 2013 without notice, disciplinary process or pay. He further alleged that on 7th March 2013 the respondent lodged a malicious complaint leading to his arrest and charge in Kisii Criminal Case No. 246 of 2013, from which he was later acquitted under Section 210 of the Criminal Procedure Code. He pleaded violations of Sections 35, 41, 44, 45, 49 and 51 of the Employment Act, 2007 and his constitutional rights, claiming Kshs. 211,250/= in terminal dues, leave pay, twelve months' compensation, notice pay, a certificate of service, costs and interest. The respondent filed a general denial putting the claimant to strict proof. Both parties testified. The court framed three issues: wrongful/unfair/unlawful termination, entitlement to relief, and costs. It found the respondent's evidence - denying the claimant was ever employed while admitting making a criminal complaint against him, and shifting business names - suspicious, unreliable and intended to veil the facts. It accordingly found wrongful, unfair and unlawful termination and held the claimant entitled to relief. The court awarded Kshs. 146,034.00 comprising notice pay, untaken leave, seven days' salary for March 2013 and eight months' compensation, ordered issuance of a certificate of service within 30 days, and awarded costs to the claimant.

Key legal issues

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01

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

Holding

Yes. The respondent's defence was internally contradictory - denying the claimant was ever employed while also suggesting he deserted - and its evidence on the change of names was found suspicious and unreliable.

Reasoning

The claimant testified he was picked from his office by police, charged, later discharged, and denied access to his workplace. The respondent denied ever employing him or paying him, yet admitted making a criminal complaint against him and hinted at desertion. The court found the respondent's evidence on the particulars and change of names suspicious, veiling the facts and unreliable, justifying an inference of unlawful termination in the absence of cogent evidence of good faith.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

Yes, on the finding of unlawful termination, though the court quantified relief differently from the claim as pleaded.

Reasoning

Following the finding of wrongful, unfair and unlawful termination, the court held the claimant entitled to relief, awarding notice pay, untaken leave for two years, seven days' salary for March 2013, and eight months' compensation under the Employment Act, plus a certificate of service, rather than the full twelve months' compensation and other heads claimed.

p. 3

Legal principles established

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  • Where an employer's evidence is evasive or contradictory as to the circumstances of separation, the court may infer wrongful, unfair and unlawful termination.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 13,000.00
  2. 2.Leave due but not taken for two years of Kshs. 26,000.00
  3. 3.Salary for seven days of March, 2013 of Kshs. 3,034.00
  4. 4.Eight months' salary as compensation for unlawful termination of employment of Kshs. 104,000.00
  5. 5.The respondent be and is hereby ordered to issue a certificate of service to the claimant within 30 days of this judgment of court
  6. 6.The costs of this claim shall be borne by the respondent

Authorities

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Legislation

  • Employment ActSections 35, 41, 44, 45, 49, 51
  • Criminal Procedure Code, Chapter 75, Laws of KenyaSection 210
  • Constitution of Kenyanull
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007); no specific constitutional/statutory provision stated

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, "Justin Onyisi Mangera v Hotel Dados [2016] KEELRC 999 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/999/eng@2016-06-30

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