Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 719 of 2014· [2016] KEELRC 1228 (KLR)

Joseph Munene Murage v Salome Ndung’u [2016] KEELRC 1228 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
17 March 2016
1,950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
The Claimant sued the Respondent, a residential property owner in Nairobi, claiming wrongful dismissal and unpaid terminal dues. He testified he was employed on 17th May 2011 as gardener, caretaker and security guard at Kshs.8,200 per month, working 6am to 6pm seven days a week without house allowance or pay slips, until 4th August 2012 when he was barred from the compound on an unproven allegation of stealing granite, without notice, hearing or payment. The Respondent denied employing him, alleging he worked for a tenant, but did not attend the hearing or call any evidence. The court held that under sections 10 and 37 of the Employment Act, the absence of a written contract after over two months of work made the Claimant a full-time employee by operation of law, and that the Respondent, as owner of the premises where the Claimant served and having admitted in her defence that he worked in her apartment, was his employer. The termination offended section 41's procedural requirements and section 45's requirement of valid reasons, and was declared unfair. The court awarded 12 months' maximum compensation of Kshs.118,404 based on minimum wage, overtime of Kshs.110,510, notice pay of Kshs.9,867, unpaid salaries of Kshs.11,182, underpayments of Kshs.6,288, a certificate of service within 14 days, and costs. Claims for public holiday pay and severance pay were declined for lack of particularity and because there was no redundancy.

Key legal issues

#
01

Existence of an employment relationship

Holding

The court found the Respondent was the Claimant's employer notwithstanding her denial

Reasoning

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.

p. 3
02

Procedural fairness in termination

Holding

Termination without notice or hearing was unlawful under section 41

Reasoning

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.

p. 3
03

Validity of reasons for termination

Holding

No written reasons meant no justifiable cause under section 45

Reasoning

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.

p. 3
04

Overtime

Holding

Overtime awarded for hours worked beyond 52 per week at 1.5 times rate

Reasoning

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.

p. 3

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. 1.A declaration that the Claimant was unfairly terminated
  2. 2.Compensation of 12 months' salary awarded at Kshs.118,404.00
  3. 3.Overtime pay of Kshs.110,510.00
  4. 4.Notice pay of Kshs.9,867.00
  5. 5.Due salaries of Kshs.11,182.00
  6. 6.Underpayments of Kshs.6,288.00
  7. 7.The Claimant to be issued with a Certificate of Service within 14 days
  8. 8.Costs of the suit awarded to the Claimant

Authorities

#

Legislation

  • Employment Actsection 10
  • Employment Actsection 35
  • Employment Actsection 37
  • Employment Actsection 40
  • Employment Actsection 41
  • Employment Actsection 45
  • Employment Actsection 49
  • Regulation of Wages (General) Order / Wage Guidelinesminimum wage
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.