George Kiroga Kaniaru v Caroline Cherono t/a Chocho Houpour Restaurant [2016] KEELRC 1866 (KLR)
The bottom line
#A Kenyan court awarded a sacked chef over Kshs.420,000 because his employer had no written contract and dismissed him without notice or a hearing.
What this practically means
#Executive summary
#Key legal issues
#Absence of a written contract of employment
The claimant was never issued with written terms of employment, contrary to section 9 of the Employment Act, so his testimony on terms suffices
The respondent did not appear or file a defence despite service, and the court took the claimant's uncontroverted evidence. Section 9 obliges employers to issue written contracts; oral arrangements operate only to the employer's detriment because, in a dispute, the court is guided by the terms between the parties as the primary document.
Unfair termination
The claimant's termination without cause, notice or hearing amounted to unfair termination under section 45 of the Employment Act
The claimant was suspended and replaced by a chef he had himself sourced and trained, without notice, reason or hearing. Given the respondent's failure to defend and the absence of any written reasons or procedure, the termination was unfair, attracting remedies under section 49 of the Employment Act.
Quantum of house allowance
The court separated the house allowance from the monthly salary to avoid double payment
The claimant claimed a salary of Kshs.25,300.00 said to be inclusive of house allowance, yet testified that his monthly salary was Kshs.22,000.00. Since a separate claim for house allowance was made, the two were separated and awarded differently to avoid awarding the same amount twice.
Legal principles established
#- Section 9 of the Employment Act requires employers to issue written contracts; in the absence of a written contract, the word of the employee shall suffice
- Termination of an employee without written reasons, notice or a hearing amounts to unfair termination under section 45 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant against the respondent
- 2.Notice pay of Kshs.22,000.00
- 3.Service gratuity for 1 completed year at Kshs.11,000.00
- 4.Service pay for non-remittance of statutory dues at Kshs.11,000.00
- 5.House allowance of Kshs.52,800.00
- 6.Overtime pay of Kshs.192,000.00
- 7.Compensation of 6 months' salary at Kshs.132,000.00
- 8.Certificate of Service to issue to the claimant
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (Employment and Labour Relations Court) - Employment Act, sections 9, 45 and 49
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Kiroga Kaniaru v Caroline Cherono t/a Chocho Houpour Restaurant [2016] KEELRC 1866 (KLR)", Case Analysis (2016). Cause No. 2046 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1866/eng@2016-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.