Nderitu Kaguu Githae & & 8 others v Lloita Hills Springs Limited & 2 others [2018] KEELRC 119 (KLR)
The bottom line
#A Kenyan employer who failed to keep or produce employment records and prove reasons for dismissal was ordered to pay nine employees salary arrears, compensation, and costs.
What this practically means
#Executive summary
#Key legal issues
#Duty to produce employment contracts and work records
The burden vests on the employer to produce work records; failure to do so means the claimant's evidence on terms of employment is accepted as true
Sections 8 and 10 of the Employment Act place the duty of issuing and keeping contracts of employment on the employer. Once suit is filed, the employer must produce work records. The respondent entered appearance but filed no work records, so the claimants' pleadings and oral evidence were taken at the truth regarding subsisting terms and conditions of employment.
Fairness of termination without notice or reasons
Termination without valid and justified reasons and without notice is unfair under sections 43 and 45 of the Employment Act
Section 43 requires the employer to prove reasons for termination; failure renders the termination unfair under section 45. Notice must issue under sections 35 and 41. The respondents asserted poor performance and that the 9th claimant ran down the business, but such matters ought to have been addressed through the section 41 process before termination.
Salary arrears and unchallenged dues
Salary rendered cannot be withheld without justifiable cause; unchallenged expenses incurred in employment must be reimbursed
Without proof of full payment of salaries, the respondent must pay the arrears as service was rendered. Expenses for phone use, travel, facilitation and personal funds used in the business were brought to the respondents' attention and were not challenged, hence payable.
Legal principles established
#- Where the employer fails to produce employment records and work records as required by sections 8 and 10 of the Employment Act, the claimant's oral evidence and pleadings as to terms of employment are taken as the truth
- An employer must prove valid and justified reasons for termination; failure to do so renders the termination unfair and compensation is due under section 49 of the Employment Act
- Poor work performance as a ground for termination must be demonstrated through a process under section 41, not mere allegations
Court orders
#- 1.Termination of employment declared unfair save for the 1st claimant
- 2.Award of salary arrears, use of personal funds and benefits to each claimant as itemised
- 3.9th claimant awarded compensation Ksh.490,000.00; salary arrears Ksh.2,872,850.00; business expenses Ksh.1,417,500.00; leave pay Ksh.98,000.00
- 4.Claimants to be issued with Certificates of Service save for the 1st claimant
- 5.Claimants awarded costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (transferred from Nyeri ELRC by ruling dated 14th May 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderitu Kaguu Githae & & 8 others v Lloita Hills Springs Limited & 2 others [2018] KEELRC 119 (KLR)", Case Analysis (2018). Cause No.170 of 2018 (Formerly Nyeri Cause No.431 & 432 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/119/eng@2018-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.