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 2169 of 2012· [2016] KEELRC 1406 (KLR)

Nemrod Nyangweso Ratemo & another v Kel Chemicals Limited & another [2016] KEELRC 1406 (KLR)

Employment and Labour Relations Court
15 April 2016
1,426 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court ruled that employers without written contracts bear the burden of proving employment terms, awarding two workers compensation for unlawful termination.

What this practically means

#

Executive summary

#
Two general workers employed by Kel Chemicals Limited sued for compensation for unlawful termination and final dues, the 1st Claimant alleging employment from April 2010 and termination on 15th August 2012, and the 2nd Claimant alleging employment from 26th April 2004 and termination on 18th August 2012, both at a daily rate of Kshs. 379. The claim against the 2nd Respondent, Firoz Nanji, was withdrawn by consent at the commencement of the hearing. The Respondent denied continuous employment, asserting the Claimants were daily-rate casual workers who deserted duty, and relied on schedules of days not worked and disputed agreements evidencing payment of final dues. The court framed three issues: employment status, desertion versus unlawful termination, and remedies. It found the Respondent's schedules unreliable as they appeared prepared for the case and primary documents were not availed; under Sections 9 and 9(7) of the Employment Act the burden fell on the employer, and the Claimants' testimony on continuous employment was adopted. The desertion defence failed because the Respondent showed no efforts to trace the Claimants and issued no notice to show cause. The disputed agreements bore unexplained, uncountersigned alterations and were rejected. The court awarded the 1st Claimant three months' salary in compensation and the 2nd Claimant eight months', plus notice pay, leave pay, house allowance at 15% of basic salary, service pay for lack of NSSF remittance, and salary for days worked, adopting a monthly salary of Kshs. 11,332. Overtime and rest day claims were dismissed as unproved. Certificates of service, costs and interest were granted.

Key legal issues

#
01

Whether the Claimants were casual or regular employees

Holding

The Claimants were regular employees; the Respondent's assertion of casual employment was rejected

Reasoning

The Respondent's schedules appeared prepared for the case, and primary documents were not availed. The Respondent also did not produce casual payment sheets. Section 9 places the documentation duty on the employer, and Section 9(7) shifts the burden of proving terms to the employer where no written contract is produced. The Court therefore adopted the Claimants' testimony on the nature and length of employment.

p. 3
02

Whether the Claimants deserted duty or were unlawfully terminated

Holding

The Claimants were terminated without justifiable cause and in violation of due procedure; the desertion defence failed

Reasoning

Desertion is gross misconduct but must be proved. The employer must show efforts to establish the employee's whereabouts and at least issue a notice to show cause. No such evidence existed. The disputed agreements produced by the Respondent carried unexplained, uncountersigned alterations and were rejected as having no probative value.

p. 3
03

Remedies for unlawful termination and final dues

Holding

Compensation of 3 months' salary for the 1st Claimant and 8 months' for the 2nd Claimant, plus notice pay, leave pay, house allowance, service pay, days worked and certificates of service; overtime and rest day claims dismissed

Reasoning

Compensation was assessed on length of service and the Respondent's conduct. Leave records were not produced so leave pay succeeded; no evidence of house allowance payment, so 15% of basic salary was added, producing an adopted monthly salary of Kshs. 11,332. No NSSF dues were paid, so service pay was allowed. Overtime and rest days were not proved.

p. 3

Legal principles established

#
  • Section 9(7) of the Employment Act shifts the burden of proving or disproving an alleged term of employment to the employer who fails to produce a written employment contract
  • Desertion of duty must be proved by the employer, including efforts to locate the employee and issuance of a notice to show cause
  • Casual employment may not exceed one month under Section 37 of the Employment Act

Court orders

#
  1. 1.Award to 1st Claimant of Kshs. 122,222 comprising 3 months' salary compensation, 1 month's salary in lieu of notice, leave pay, house allowance, salary for 15 days worked and service pay
  2. 2.Award to 2nd Claimant of Kshs. 359,472 comprising 8 months' salary compensation, 1 month's salary in lieu of notice, leave pay, house allowance, salary for 18 days worked and service pay
  3. 3.Claimants entitled to certificates of service
  4. 4.Award to attract interest at court rates from date of award until payment in full
  5. 5.Costs of the case to the Claimants

Authorities

#

Legislation

  • Employment Act, 2007Section 9
  • Employment Act, 2007Section 9(7)
  • Employment Act, 2007Section 37
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nemrod Nyangweso Ratemo & another v Kel Chemicals Limited & another [2016] KEELRC 1406 (KLR)", Case Analysis (2016). Cause No 2169 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1406/eng@2016-04-15

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