Joseph Kaitano Ikobwa v Khetia Garment Limited [2016] KEELRC 1754 (KLR)
The bottom line
#A Kenyan court ruled a labourer's summary dismissal unfair, awarding him Kshs. 82,500 because his employer kept no written contract and gave him no hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee of the respondent
The claimant was an employee of the respondent; the respondent's mere denial and failure to produce a written contract shifted the burden of proof to it
The claimant produced a KUCFAW membership card indicating employment by the respondent as a General Labourer, his identity card, a job application letter dated 21st July, 2010 and a demand letter. None were controverted. Under Section 10(7) of the Employment Act the employer bears the burden of proving or disproving alleged terms where no written contract is produced. The respondent instead advanced mere denial, so the claimant's evidence prevailed.
Whether the termination was wrongful, unfair and unlawful
The termination was wrongful, unfair and unlawful for want of valid reason and fair procedure
Section 45(2) of the Employment Act bars unfair termination and requires the employer to prove a valid and fair reason plus fair procedure. Section 41 requires the employer to explain reasons to the employee, allow a representative and hear explanations. The respondent observed none of these requirements, and the disputed Kshs.13,000.00 deduction was imposed without due process, rendering the summary dismissal substantively and procedurally unfair.
Entitlement to a certificate of service
The claimant was entitled to a certificate of service as a mandatory statutory entitlement
Section 51 of the Employment Act makes issuance of a certificate of service by an employer on cessation of employment mandatory. The court described the question as a non-issue and ordered the respondent to issue the certificate.
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 lies on the employer
- For a termination of employment to pass the fairness test there must be both substantive justification and procedural fairness
- An employer is obliged to issue a certificate of service on cessation of employment
Court orders
#- 1.A declaration that the termination of the employment of the claimant was wrongful, unfair and unlawful
- 2.The respondent be and is hereby ordered to issue the claimant with a certificate of service
- 3.That the Commissioner for labour be and is hereby ordered to, with the involvement of the parties, compute overtime dues payable to the claimant on or before ninety (90) days of this judgment of court
- 4.One month's pay in lieu of notice at Ksh. 7,500.00
- 5.Leave dues for two (2) years at Kshs. 15,000.00
- 6.8 months compensation for unfair termination of employment being 7500 x 8 months = Kshs. 60,000.00
- 7.Total award of Kshs. 82,500.00
- 8.Mention on 4th May, 2016 to confirm computation of overtime dues and other directions of court
- 9.The costs of this claim shall be borne by the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over disputes arising from employment under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kaitano Ikobwa v Khetia Garment Limited [2016] KEELRC 1754 (KLR)", Case Analysis (2016). Memorandum of Claim dated 11th July, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1754/eng@2016-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.