Stephen Kariuki & another v Michael Njoroge & another Ltd [2017] KEELRC 1986 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Status of verbally employed workers engaged continuously and paid monthly
The claimants were not casuals but full-time employees protected under the Employment Act
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.
Employer's duty to keep and file employment records under sections 9, 10, 20 and 51 of the Employment Act
Failure to issue and file statutory records means the claimant's evidence stands uncontradicted
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.
Fairness of the 1st claimant's termination
Termination without notice, hearing or warning was unfair
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.
2nd claimant's sickness absence and termination
Termination was justified; absence without medical certificate is without just cause
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).
Entitlement to house allowance
House allowance awarded to both claimants as an entitlement of employees in full continuous employment
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.
Legal principles established
#- 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
#- 1.Judgment entered for the claimants against the respondents jointly and severally with an award of Kshs.345,600.00 as house allowance
- 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)
- 3.2nd claimant awarded leave pay at Kshs.12,000.00
- 4.1st claimant awarded salary owing for June 2010 at Kshs.15,000.00
- 5.Claimants awarded costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Thomas Osieko Amulele v Catholic Diocese of Nakuru [2018] KEELRC 134 (KLR)[2018] KEELRC 134 (KLR)6 Dec 2018applied
- Wesley C Koskey v Style Industries Ltd [2018] KEELRC 15 (KLR)[2018] KEELRC 15 (KLR)14 Jun 2018applied
- Calister Nyatichi Oriku v EPCO Builders Limited [2018] KEELRC 1194 (KLR)[2018] KEELRC 1194 (KLR)20 Apr 2018
Cite this brief
#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.