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ELRCPartially AllowedCause No. 325 of 2012· [2016] KEELRC 1549 (KLR)

Charles A. Songoro v Chana Wu Yi Limited [2016] KEELRC 1549 (KLR)

Employment and Labour Relations Court of Kenya
14 March 2016
HWHellen S. Wasilwa
1,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that an employer without a written contract bears the burden of proving employment terms, and won't escape liability for unfair dismissal.

What this practically means

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Executive summary

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The Claimant, appearing in person and later through Rakoro & Company Advocates, sued Chana Wu Yi Limited for unlawful termination of employment and unpaid terminal dues, claiming he was employed in March 2009 as a mason on a monthly consolidated salary of Kshs. 15,000 and dismissed without notice on or about 14th May 2011. The Respondent denied employing him on monthly terms, asserting he was engaged casually at Kshs. 500 per day for piece work which ended on 14.5.2011, and produced salary vouchers and attendance forms for February to April 2011 purportedly signed by the Claimant. The Claimant denied signing those documents. The Court framed four issues: existence and terms of employment, whether dismissal occurred and for valid reasons, whether due process was followed, and entitlement to relief. Relying on Sections 9 and 10(7) of the Employment Act, the Court held that in the absence of a written contract the burden of proving or disproving the terms of employment lay on the employer, which the Respondent failed to discharge, particularly as it adduced no evidence to prove the Claimant's signatures on the payroll and attendance forms. The Court found the Claimant was an employee from 2009 to 2011 whose terms became permanent after three months of continuous work. It found no valid reasons for the dismissal and no compliance with Section 41 of the Employment Act, holding the termination unlawful and unfair. The Court awarded Kshs. 240,000 comprising one month's salary in lieu of notice, leave for two years, service pay and twelve months' compensation, ordered a Certificate of Service, and awarded costs to the Claimant.

Key legal issues

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01

Existence and terms of employment relationship

Holding

The Claimant was an employee of the Respondent from 2009 to 2011 as a Mason earning 500/= daily payable every 2 weeks, consolidated at 15,000/=; after three months of continuous work his terms became permanent.

Reasoning

The Respondent alleged the Claimant worked casually on piece work at 500/= per day and produced salary vouchers and attendance forms allegedly signed by him. The Claimant denied the signatures and the Respondent called no evidence to prove them. Since the employer had not issued a written contract, the statutory burden under Section 10(7) of the Employment Act rested on the Respondent, which it failed to discharge; it also failed to produce muster rolls for the period.

p. 3
02

Validity of the termination

Holding

There were no valid reasons to dismiss the Claimant; the alleged abscondment was not substantiated.

Reasoning

The Claimant alleged oral dismissal while the Respondent said the piece work simply ended. There was no written termination letter. The Respondent's assertion that the Claimant absconded duty was not followed up and no report of abscondment was made to labour offices, so no valid reason for the dismissal was explained.

p. 3
03

Due process

Holding

No due process as envisaged under Section 41 of the Employment Act was followed, rendering the termination unlawful and unfair.

Reasoning

The Court found on the evidence adduced that the procedural requirements of Section 41 of the Employment Act - notice and hearing before termination - were not complied with, so the termination was both substantively and procedurally unfair, entitling the Claimant to compensation.

p. 4

Legal principles established

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  • Where an employer fails to produce a written contract or prescribed particulars, the burden of proving or disproving an alleged term of employment lies on the employer.
  • A contract of service for three months or more must be in writing.

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs. 15,000
  2. 2.Leave for 2 years of Kshs. 30,000
  3. 3.Service pay for 2 years (1/2 x 15,000 x 2) of Kshs. 15,000
  4. 4.12 months' compensation for unlawful termination of Kshs. 180,000
  5. 5.Total award of Kshs. 240,000
  6. 6.Claimant to be issued with a Certificate of Service
  7. 7.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 9(1) and (2)
  • Employment ActSection 10(7)
  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (industrial court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles A. Songoro v Chana Wu Yi Limited [2016] KEELRC 1549 (KLR)", Case Analysis (2016). Cause No. 325 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1549/eng@2016-03-14

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