Peter Mbugua v James Muigai Thungu T/A Eldoret Express Co. Ltd [2016] KEELRC 1305 (KLR)
The bottom line
#A Kenyan employer with no written employment contract lost KShs 342,000 after a court put the burden of proving employment terms on it.
What this practically means
#Executive summary
#Key legal issues
#Period of employment and burden of proof absent a written contract
The Claimant had served for more than one year; the Respondent, having failed to issue a written contract as required under Section 9 of the Employment Act, bore the burden of disproving the alleged terms and failed to show when it employed the Claimant.
The Respondent never issued a letter of appointment or written contract, contrary to Section 9 of the Employment Act which requires written particulars within three months of employment. Under Section 10(7), failure to produce the written contract shifts the burden of proving or disproving an alleged term of employment onto the employer. The payment voucher PM2 showed payment for November–December 2010 received on 5/4/2011, and the payroll number 056 out of 152 employees indicated he was not a new employee, corroborating the Claimant's account of long service.
Lawfulness of the termination
The Claimant's verbal termination was unlawful, warranting twelve months' compensation.
The Claimant testified he was terminated verbally when he went to ask for his pay and was not given a termination letter. The Respondent's assertion that he absconded was not supported, and the Respondent admitted no certificate of service was issued. The court found for the Claimant on the manner in which the employment ended and awarded the maximum twelve months' compensation under Section 15 of the Labour Institutions Act for loss of employment.
Legal principles established
#- Where an employer fails to issue a written contract as required by the Employment Act, the burden of proving or disproving an alleged term of employment lies on the employer.
Court orders
#- 1.Award of salary arrears for November–April 2011 of Kshs. 108,000
- 2.Award of one month's salary in lieu of notice of Kshs. 18,000
- 3.Award of 12 months' compensation for unlawful termination of Kshs. 216,000
- 4.Total award of Kshs. 342,000
- 5.Respondent to issue Claimant with a Certificate of Service
- 6.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and Labour Institutions Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mbugua v James Muigai Thungu T/A Eldoret Express Co. Ltd [2016] KEELRC 1305 (KLR)", Case Analysis (2016). Cause No. 1144 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1305/eng@2016-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.