Milionzya Sammy v Twiga Construction Limited [2018] KEELRC 39 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee of the respondent or of the subcontractor Wamwetu Enterprises
The claimant was an employee of the respondent, not the subcontractor
The court found the claimant's case more practical and probable. He received instructions directly from the respondent, and the respondent's own advocate correspondence confirmed the employment position. The respondent's conduct in purporting to pay the claim through the labour office contradicted its claim that Wamwetu Enterprises was the employer, and estopped it from relying on the subcontract clause.
Whether the termination was wrongful, unfair and unlawful
The summary dismissal was unfair and unlawful for lack of valid reason and failure to afford the claimant a hearing
The claimant was ordered to leave the respondent's premises as his services were no longer required, with no notice or opportunity to be heard. Sections 41, 43, 45 and 46 of the Employment Act, 2007 mandate substantive and procedural fairness, requiring the employer to prove a valid and fair reason and a fair procedure, none of which was demonstrated.
Whether the claimant is entitled to the relief sought
Having won on unlawful termination, the claimant is entitled to relief, awarded at six months' compensation plus notice, leave and service pay
The court held that success on the unlawful termination claim entitled the claimant to relief. It awarded one month's salary in lieu of notice, six months' compensation (reduced from the twelve months claimed), leave pay for the one-year service period, and service pay calculated at 15 days' salary per completed year, totaling Kshs.178,500.00.
Joinder and consolidation of the causes
Only Causes 1771/2014 and 1772/2014 remain live, with 1771/2014 as the lead file
Causes 1768/2014, 1769/2014 and 1770/2014 had been dismissed for want of prosecution on 11th July 2018, so the claimant's submissions purporting to cover five causes were narrowed. The court preferred the earlier consolidation record of Ndolo, J. over the later record of Wasilwa, J., leaving two living causes with 1771/2014 as lead.
Legal principles established
#- An employer must prove both a valid and fair reason for termination and that fair procedure was followed
- The presence of multiple legal entities in a group of companies should not be used to defeat employees' employment rights
- Where an employee is not heard before termination, the termination is unfair regardless of the alleged offence
Court orders
#- 1.One (1) month's salary in lieu of notice of Kshs.21,000.00
- 2.Six (6) months' compensation for unlawful termination of employment, 6 x Kshs.21,000.00, being Kshs.126,000.00
- 3.Payment in lieu of untaken and unpaid leave for the entire period of service being Kshs.21,000.00
- 4.Service/Gratuity calculated at 15 days salary of every completed year of service being Kshs.10,500.00
- 5.Total award of Kshs.178,500.00
- 6.The cost of the claim to be borne by the respondent
- Jurisdiction invoked
- Jurisdiction of the Industrial Court under the Employment Act, 2007 over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milionzya Sammy v Twiga Construction Limited [2018] KEELRC 39 (KLR)", Case Analysis (2018). Cause No. 1771 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/39/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.