Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No.170 of 2018 (Formerly Nyeri Cause No.431 & 432 of 2017)· [2018] KEELRC 119 (KLR)

Nderitu Kaguu Githae & & 8 others v Lloita Hills Springs Limited & 2 others [2018] KEELRC 119 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
22 November 2018
2,663 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

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

#
Nine claimants sued Lloita Hills Springs Limited and its two directors, Letan Limited and Ledema Ole Mesopir, claiming unpaid salary arrears, compensation for unfair termination, reimbursement of personal funds and benefits, and certificates of service. The causes were transferred from Nyeri and consolidated under Nakuru Cause No.170 of 2018. Although the respondents entered appearance, they filed a defence only to the 9th claimant's claim and did not attend the hearing or call evidence. The court held that under sections 8 and 10 of the Employment Act the duty to produce contracts and work records vests on the employer, and the respondents' failure to do so meant the claimants' evidence on terms of employment was taken as the truth. On termination, section 43 required the employer to prove valid reasons; the assertion that the 9th claimant ran down the business was not sufficient, as performance issues should have been addressed under section 41. Termination was declared unfair for the 2nd to 9th claimants, with compensation awarded under section 49: the 9th claimant received 7 months' gross salary (Ksh.490,000.00), salary arrears of Ksh.2,872,850.00, business expenses of Ksh.1,417,500.00 and leave pay of Ksh.98,000.00. The 1st claimant, still in employment, received salary arrears and reimbursement of personal funds. Salary arrears and one-month compensation were awarded to the other claimants. Judgment was entered jointly and severally against the respondents, with certificates of service for all save the 1st claimant, plus costs.

Key legal issues

#
01

Duty to produce employment contracts and work records

Holding

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

Reasoning

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.

p. 4
02

Fairness of termination without notice or reasons

Holding

Termination without valid and justified reasons and without notice is unfair under sections 43 and 45 of the Employment Act

Reasoning

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.

p. 4
03

Salary arrears and unchallenged dues

Holding

Salary rendered cannot be withheld without justifiable cause; unchallenged expenses incurred in employment must be reimbursed

Reasoning

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.

p. 4

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. 1.Termination of employment declared unfair save for the 1st claimant
  2. 2.Award of salary arrears, use of personal funds and benefits to each claimant as itemised
  3. 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. 4.Claimants to be issued with Certificates of Service save for the 1st claimant
  5. 5.Claimants awarded costs of the suit

Authorities

#

Legislation

  • Employment Act, 2007section 8
  • Employment Act, 2007section 10 (incl. 10(7))
  • Employment Act, 2007section 28
  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49
  • Employment Act, 2007section 51
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 9

Cases cited (2)

  • Alex Wainaina versus Kenya Airways Limited
    Cause No.430 of 2016
  • Abdi Halake Garamboda versus Fidelity Security Services Limited
    [2015] eKLR
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.