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ELRCPartially AllowedCause No. 888 of 2010· [2017] KEELRC 1986 (KLR)

Stephen Kariuki & another v Michael Njoroge & another Ltd [2017] KEELRC 1986 (KLR)

Employment and Labour Relations Court of Kenya
2 October 2017
2,658 words in judgment
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The bottom line

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A Kenyan court ruled two verbally employed workers were full-time staff, not casuals, awarding one worker large damages because the employer kept no records.

What this practically means

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Executive summary

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The claimants, employed by verbal agreement as a driver and turn boy, sued Michael Njoroge and Sandstone Logistics Limited/Cylinder Works Ltd seeking notice pay, unpaid leave, compensation for loss of employment, underpayments, house allowance, severance pay, overtime and public holiday pay following terminations in March and June 2010. The respondents denied the claims, asserting misjoinder, that the claimants were casuals who deserted their duties, and that NSSF and NHIF were duly remitted. The court had already, in rulings of 7th February 2013 and 3rd April 2013, dismissed the preliminary objections after the respondent failed to file employment records and full particulars of the claimants' employment. Holding that the claimants worked continuously for monthly pay beyond the statutory period in section 37 of the Employment Act, the court found they were full-time employees entitled to statutory protection. The employer's failure to issue or file written contracts, payment statements and work records meant the claimants' evidence had to be taken as the truth. The 1st claimant's termination without notice, hearing or warning was unfair, warranting notice pay, leave pay, salary owing for June 2010, house allowance and 12 months' gross pay as compensation. The 2nd claimant, however, failed to produce a medical practitioner's certificate for his absence following a spider bite, so his termination was justified; he received only accrued leave pay. Severance pay, service pay and overtime claims failed for want of proof. Judgment was entered jointly and severally against the respondents, with costs to the claimants.

Key legal issues

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01

Status of verbally employed workers engaged continuously and paid monthly

Holding

The claimants were not casuals but full-time employees protected under the Employment Act

Reasoning

The claimants worked for periods beyond the statutory threshold in section 37, their duties were continuous in nature and did not end at the end of each day, and they were paid monthly. They were therefore entitled to protection of employment rights, fair termination and terminal dues.

p. 3
02

Employer's duty to keep and file employment records under sections 9, 10, 20 and 51 of the Employment Act

Holding

Failure to issue and file statutory records means the claimant's evidence stands uncontradicted

Reasoning

A written contract, particulars of employment, itemised payment statements and certificate of service must be readily issued to an employee. In litigation these are automatic records the employer must submit; failure suggests the records do not exist. Without work records to contradict the claimants, their testimony must be accepted.

p. 4
03

Fairness of the 1st claimant's termination

Holding

Termination without notice, hearing or warning was unfair

Reasoning

The defence that the claimant was allocated work and declined it was unsupported by any record of warning, sanction, hearing or witnesses. The absence of work records left a major gap in the defence, so the assertion that he refused allocated work fell away.

p. 4
04

2nd claimant's sickness absence and termination

Holding

Termination was justified; absence without medical certificate is without just cause

Reasoning

Although a sick employee has rights under sections 30 and 34 and may use a third party to inform the employer, the 2nd claimant failed to produce a medical practitioner's certificate and was not honest about the medical records. Absence without just cause is subject to summary dismissal under section 44(4).

p. 4
05

Entitlement to house allowance

Holding

House allowance awarded to both claimants as an entitlement of employees in full continuous employment

Reasoning

The court held house allowance is due to all employees in full and continuous employment for periods beyond a full month, even where termination was on account of gross misconduct, and awarded Kshs.345,600.00.

p. 5

Legal principles established

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  • Where an employee serves beyond the statutory period contemplated under section 37 of the Employment Act, they become full-time employees protected in their employment rights and terminal dues
  • The duty to file employment records in a claim before the court is vested upon the employer; failure to do so means the claimant's evidence must be taken as the truth
  • An employee absent on sickness must inform the employer within a reasonable time, may use a third party to communicate, and upon resumption must submit a medical certificate from an authorised medical practitioner

Court orders

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  1. 1.Judgment entered for the claimants against the respondents jointly and severally with an award of Kshs.345,600.00 as house allowance
  2. 2.1st claimant awarded notice pay at Kshs.15,000.00; leave pay Kshs.15,000.00; and compensation at Kshs.180,000.00 (12 months gross pay)
  3. 3.2nd claimant awarded leave pay at Kshs.12,000.00
  4. 4.1st claimant awarded salary owing for June 2010 at Kshs.15,000.00
  5. 5.Claimants awarded costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 9
  • Employment Act, 2007sections 10(6) and (7)
  • Employment Act, 2007section 10
  • Employment Act, 2007section 20
  • Employment Act, 2007section 51
  • Employment Act, 2007section 37
  • Employment Act, 2007sections 30 and 34
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 35
  • Employment Act, 2007section 28
  • Employment Act, 2007section 40
  • Regulation of Wages in the Building and Construction Industry OrderLegal Notice No.94 of 13th August, 2004

Cases cited (1)

  • Dorothy Ndung’u versus Machakos University
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim for unfair termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Kariuki & another v Michael Njoroge & another Ltd [2017] KEELRC 1986 (KLR)", Case Analysis (2017). Cause No. 888 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1986/eng@2017-10-02

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