Wycliff Murila Otiang’a v John Kamau Wamakima [2017] KEELRC 1983 (KLR)
The bottom line
#A Kenyan employer who fired a worker without notice, reasons or a hearing was ordered to pay over Kshs. 330,000 in damages and costs.
What this practically means
#Executive summary
#Key legal issues
#Unchallenged claim proceeding undefended
The respondent did not enter appearance, file a defence or attend hearing, so the claim stands unchallenged but its merits were still assessed.
The respondent was served with summons and mention notices but neither appeared nor filed a defence nor attended the hearing. The court held the claim stood not challenged, but proceeded to assess the merits of each head of claim rather than entering judgment automatically.
Fairness of termination
The termination without notice, hearing or reasons was unfair and unjustified in law.
Sections 41, 43 and 45 of the Employment Act require a hearing and a valid reason before termination. The respondent gave neither notice nor hearing nor reasons when terminating the claimant on 29th February 2016, rendering the termination flawed and entitling the claimant to compensation under section 49.
Underpayments, service pay and annual leave
Underpayments per Wage Orders, service pay for 7 years and annual leave pay were awarded as the employer filed no records or defence to rebut them.
The claimant relied on Wage Guidelines from 2010 to 2015 showing payment below the minimum wage; with no challenge, the assessments of Kshs. 173,088.00 were awarded. Service pay at 15 days' pay per year for 7 complete years was due because the employer failed to remit statutory dues. Annual leave pay was confirmed since the employer, who must keep records under section 10, adduced none showing leave was taken.
Legal principles established
#- Where an employer terminates employment without a hearing or reasons, the termination is unfair and compensation is due under section 49 of the Employment Act.
- A written contract of service must issue within two months of commencement of employment under section 10 of the Employment Act, 2007.
- Wage Guidelines set the bare minimum wage; employers may pay above but not below the minimum.
- Where the employer fails to remit statutory dues, service pay is payable under section 35(5) and (6) of the Employment Act, 2007.
Court orders
#- 1.Judgment entered for the claimant against the respondent with compensation of Kshs. 32,862.00
- 2.Notice pay of Kshs. 10,954.00
- 3.Service pay of Kshs. 38,339.00
- 4.Annual leave pay of Kshs. 76,678.00
- 5.Underpayments of Kshs. 173,088.00
- 6.Costs of the suit awarded to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wycliff Murila Otiang’a v John Kamau Wamakima [2017] KEELRC 1983 (KLR)", Case Analysis (2017). Cause No. 1150 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1983/eng@2017-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.