Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedEmployment Cause dated 11th July, 2015 (Nairobi/Eldoret ELRC)· [2016] KEELRC 1752 (KLR)

Jephther Etyangata Odera v Khetia Garment Limited [2016] KEELRC 1752 (KLR)

Employment and Labour Relations Court
28 January 2016
DMD.K. Njagi Marete
2,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that firing an injured worker without a hearing was unfair, ordering the employer to pay compensation and costs.

What this practically means

#

Executive summary

#
The claimant, employed as a turn boy from February 2013 at Kshs. 8,000 per month, sued the respondent alleging wrongful, unfair and unlawful oral summary dismissal on 15th March 2014 without payment of terminal dues. He asserted he was targeted after serving the respondent with medical documents calling for light duties following injuries sustained on duty. The respondent denied any employment relationship or contract with the claimant, averring she was wrongly sued, and unsuccessfully sought leave to join Pemage Security Services Ltd as third party - a process never pursued to conclusion. The court framed five issues: employment, unfairness of dismissal, entitlement to relief, certificate of service, and costs. On the evidence - a KUCFAW membership card, identity card and demand letter, none controverted - and applying Section 10(7) of the Employment Act, 2007, the court found the employment relationship proved, holding the respondent to the burden of proving or disproving terms where no written contract exists. On unfairness, invoking Sections 41 and 45 and the authority in Kennedy Nyaguncha Omanga v Bob Morgan Services Limited, the court held the termination procedurally unfair since the respondent neither established a valid reason nor followed the required hearing and medical-termination procedure. The claim was allowed: declaration of wrongful, unfair and unlawful termination; certificate of service; one month's pay in lieu of notice (Kshs. 8,000); one year's leave (Kshs. 8,000); and eight months' compensation (Kshs. 64,000), with overtime computation referred to the Commissioner for Labour within 90 days, and costs to the respondent. Mention was set for 4th May 2016.

Key legal issues

#
01

Whether an employment relationship existed between the claimant and the respondent

Holding

The claimant was an employee of the respondent; the respondent's bare denial, without production of a written contract or particulars, shifted the burden of proof to the employer under Section 10(7) of the Employment Act.

Reasoning

The claimant produced a KUCFAW membership card indicating employment by the respondent as a turn boy, his identity card and a demand letter, none of which were controverted. The respondent merely denied the relationship and did not discharge the burden imposed on an employer who fails to produce a written contract under Section 10(7) of the Employment Act, 2007. Her attempt to join Pemage Security Services Ltd as third party was not pursued to conclusion and did not assist her case.

p. 5
02

Whether the summary dismissal was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful for want of valid reason established and fair procedure under Sections 41 and 45 of the Employment Act, 2007.

Reasoning

The claimant was dismissed orally after presenting medical documents calling for light duties following injuries sustained at work. The respondent did not prove a valid reason or adherence to Section 41 procedure - explanation, hearing and representation - and no specific medical examination or notice of termination was given as required where incapacity is relied upon. Reliance on treatment notes and sick-off sheets without following the prescribed procedure amounted to unfair termination for want of procedural fairness.

p. 6
03

Entitlement to relief and certificate of service

Holding

Having succeeded on employment and unfair termination, the claimant was entitled to relief, including the mandatory certificate of service under Section 51 of the Employment Act.

Reasoning

The court held the certificate of service was a non-issue because the law mandatorily requires an employer to issue it on cessation of employment under Section 51. Quantum was fixed at one month's notice pay of Kshs. 8,000, one year's leave of Kshs. 8,000 and eight months' compensation of Kshs. 64,000 for unfair termination, with overtime computation remitted to the Commissioner for Labour with party involvement.

p. 6

Legal principles established

#
  • Where an employer fails to produce a written contract or written particulars of employment, the burden of proving or disproving an alleged term of employment is on the employer (Section 10(7), Employment Act, 2007)
  • Termination of employment is unfair where the employer fails to prove a valid and fair reason and fair procedure (Section 45, Employment Act, 2007)
  • An employer terminating on grounds of physical incapacity must follow procedural fairness under Section 41, including explanation, hearing and specific notice; failure renders termination unfair
  • A certificate of service must mandatorily be issued by the employer on cessation of employment (Section 51, Employment Act, 2007)

Court orders

#
  1. 1.A declaration that the termination of the employment of the claimant was wrongful, unfair and unlawful
  2. 2.The respondent to issue the claimant with a certificate of service
  3. 3.The Commissioner for Labour to, with the involvement of the parties, compute overtime dues payable to the claimant on or before ninety (90) days of the judgment
  4. 4.One month's pay in lieu of notice of Kshs. 8,000.00
  5. 5.Leave due for one (1) year of Kshs. 8,000.00
  6. 6.Eight months' compensation for unfair termination of employment of Kshs. 64,000.00 (total award Kshs. 80,000.00)
  7. 7.Mention on 4th May, 2016 to confirm computation of overtime dues and other directions of court
  8. 8.The costs of the claim to be borne by the respondent

Authorities

#

Legislation

  • Employment Act, 2007Section 8
  • Employment Act, 2007Section 9(2)
  • Employment Act, 2007Section 10(1) and 10(7)
  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 44(3) and (4)
  • Employment Act, 2007Section 45(2) and (4)(b)
  • Employment Act, 2007Section 51

Cases cited (2)

  • Edward Isedio Mukasia Vs Eldo Supermarket Ltd
    [2015] eKLR
  • Kennedy Nyaguncha Omanga -vs- Bob Morgan Services Limited
    Nairobi Cause No.1983 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Memorandum of Claim under the ELRC procedure)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jephther Etyangata Odera v Khetia Garment Limited [2016] KEELRC 1752 (KLR)", Case Analysis (2016). Employment Cause dated 11th July, 2015 (Nairobi/Eldoret ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1752/eng@2016-01-28

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