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ELRCPartially AllowedCause No. 186 of 2015· [2016] KEELRC 1643 (KLR)

David Onyango Okuku v Mini Bakeries (Nairobi) Limited [2016] KEELRC 1643 (KLR)

Employment & Labour Relations Court of Kenya
24 February 2016
1,670 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a bakery unfairly fired its worker and must pay him, because employers must keep written employment records.

What this practically means

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Executive summary

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The claimant, David Onyango Okuku, sued Mini Bakeries (Nairobi) Limited alleging that he was employed as a mixer at the respondent's Eldoret Branch from January 2006 on a salary of Kshs. 20,280 and that his services were unfairly, unlawfully and unprocedurally terminated in May 2014. He sought notice pay, severance pay, leave dues, rest-day payments, twelve months' compensation for unfair termination, a certificate of service and costs, contending breaches of Sections 41, 44 and 45 of the Employment Act, 2007. The respondent denied ever employing the claimant, alleged fraud and forgery, and prayed for dismissal of the claim. The court framed four issues: existence of employment, wrongful termination, entitlement to relief, and costs. On the first issue, the court found the claimant's evidence, including a job identification card, demand letter and reliance on the respondent's statutory duty under Sections 9, 10(7) and 74 of the Employment Act to keep written records, overwhelming the respondent's mere denial, and held the claimant was an employee. On the second issue, since the respondent's defence closed at a denial of employment and offered no justification for the termination, the court found the termination wrongful, unfair and unlawful. The court allowed the claim in part, awarding one month's pay in lieu of notice and three months' salary as compensation, totaling Kshs. 81,120, ordered issuance of a certificate of service, and awarded costs to the claimant. Claims for severance pay, leave dues and rest days were not granted, and the twelve months' compensation sought was reduced to three months.

Key legal issues

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01

Whether the claimant was an employee of the respondent

Holding

The claimant was an employee of the respondent

Reasoning

The claimant relied on a job identification card, demand letter, and documents including a collective agreement between the respondent and the union. The respondent's defence was a mere denial and it failed to produce written contract records as required under Sections 9, 10(7) and 74 of the Employment Act. On the balance of probability and preponderance of evidence, the claimant's evidence overwhelmed the defence and employment was established.

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02

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful

Reasoning

Having established employment, the respondent offered no defence to the termination, having premised its entire defence on denial of employment. The claimant invoked Sections 41, 44 and 45 of the Employment Act and authorities on substantive and procedural fairness. With no reason or procedure proved by the employer, the termination fell foul of Section 45.

p. 5
03

Whether the claimant is entitled to the relief sought

Holding

The claimant was entitled to relief but only in part; notice pay was limited to one month and compensation to three months, and severance, leave and rest-day claims were not granted

Reasoning

Having succeeded on the first two issues, the claimant was entitled to relief. The court however exercised discretion to award one month's pay in lieu of notice rather than three, and three months' compensation rather than the twelve months sought, together with a certificate of service and costs.

p. 5

Legal principles established

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  • Where an employer fails to produce written records of the employment contract, the court may find the claimant's account of employment proved on a balance of probability
  • Where employment is established and the employer raises no defence for the termination, the termination is wrongful, unfair and unlawful

Court orders

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  1. 1.One month's pay in lieu of notice of Kshs. 20,280.00
  2. 2.Three months salary as compensation for unlawful termination of employment totalling Kshs. 60,840.00 (total award Kshs. 81,120.00)
  3. 3.The respondent be and is hereby ordered to issue a certificate of service to the claimant
  4. 4.The cost of the claim shall be borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007Section 9
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 45 (2)
  • Employment Act, 2007Section 45 (4)(b)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 74

Cases cited (2)

  • Walter Ogal Anuro Vs. Teachers Service Commission
    (2013) eKLR
  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    (2013) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment & Labour Relations Court (Cause No. 186 of 2015)

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, "David Onyango Okuku v Mini Bakeries (Nairobi) Limited [2016] KEELRC 1643 (KLR)", Case Analysis (2016). Cause No. 186 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1643/eng@2016-02-24

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