Nemrod Nyangweso Ratemo & another v Kel Chemicals Limited & another [2016] KEELRC 1406 (KLR)
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
#Key legal issues
#Whether the Claimants were casual or regular employees
The Claimants were regular employees; the Respondent's assertion of casual employment was rejected
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.
Whether the Claimants deserted duty or were unlawfully terminated
The Claimants were terminated without justifiable cause and in violation of due procedure; the desertion defence failed
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.
Remedies for unlawful termination and final dues
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
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.
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.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.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.Claimants entitled to certificates of service
- 4.Award to attract interest at court rates from date of award until payment in full
- 5.Costs of the case to the Claimants
- 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.