Joseph Munene Murage v Salome Ndung’u [2016] KEELRC 1228 (KLR)
The bottom line
#A Kenyan court awarded an informal worker over Kshs.250,000 after his employer denied employing him, proving workers without written contracts still have full legal protection.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship
The court found the Respondent was the Claimant's employer notwithstanding her denial
The Respondent's own defence averred that the Claimant was employed in her apartment serving tenants. As owner of the premises where the Claimant served as caretaker, gardener and security guard, she knew of his employment and would have joined the actual employer if different. With no evidence to the contrary, she was held to be the employer.
Procedural fairness in termination
Termination without notice or hearing was unlawful under section 41
The law requires notice and a hearing before termination, even for gross misconduct. Where summary action is taken, the employer must set out exceptional circumstances. The Respondent adduced no evidence to challenge the Claimant, and the failure to abide by procedural requirements rendered the termination unlawful.
Validity of reasons for termination
No written reasons meant no justifiable cause under section 45
The employer must give fair and valid reasons existing at the time of termination. The alleged theft of granite was not reported to the police, and the Respondent gave no written reasons for the termination. In the absence of written reasons, justifiable cause was lacking and the termination was unfair under section 45.
Overtime
Overtime awarded for hours worked beyond 52 per week at 1.5 times rate
The Claimant worked 6am to 6pm, seven days a week, amounting to 84 hours weekly against a required 52 hours, an extra 32 hours per week. Over 14 months this totalled 1,792 overtime hours, payable at 1.5 times the basic rate, quantified at Kshs.110,510.00.
Legal principles established
#- Where no written contract is issued and the employee works beyond two months, he becomes a full-time employee by operation of law under sections 10 and 37 of the Employment Act
- Section 41 of the Employment Act applies to every termination, even for gross misconduct; failure to follow the procedural requirements renders the termination unlawful
- An employer who owns the premises where a claimant served, and who does not join the actual employer, is taken to be the employer
Court orders
#- 1.A declaration that the Claimant was unfairly terminated
- 2.Compensation of 12 months' salary awarded at Kshs.118,404.00
- 3.Overtime pay of Kshs.110,510.00
- 4.Notice pay of Kshs.9,867.00
- 5.Due salaries of Kshs.11,182.00
- 6.Underpayments of Kshs.6,288.00
- 7.The Claimant to be issued with a Certificate of Service within 14 days
- 8.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination and terminal dues claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Munene Murage v Salome Ndung’u [2016] KEELRC 1228 (KLR)", Case Analysis (2016). Cause No. 719 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1228/eng@2016-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.