Samuel Muraya & another v Victory Construction Company Limited [2018] KEELRC 436 (KLR)
The bottom line
#A Kenyan court awarded two drivers over Kshs.540,000 after their employer fired them without notice, hearing, or proof of a valid reason.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants were employees of the Respondent
The Claimants were employees of the Respondent, established by their testimony, NHIF and NSSF records showing the Respondent as employer, and the Respondent's failure to rebut
The Claimants testified they drove for the Respondent's construction site and produced NHIF member data summaries and NSSF records indicating the Respondent as employer. One claimant had payslips and signed the payroll paid in cash by the Respondent. The Respondent, which alleged the Resident Engineer employed the Claimants, called no evidence to controvert this. In the absence of rebuttal, the court found the employment relationship with the Respondent proved.
Whether the termination was unfair/unlawful
The termination was unfair and unlawful as the Respondent did not comply with Section 41 and did not justify the grounds for termination under Section 47(5)
The Respondent complied with none of the procedural guarantees under Sections 41, 43 and 45 of the Employment Act; the Claimants were never informed why their employment was terminated and were simply denied access to the premises. The employer, bearing the burden of justifying the grounds for termination under Section 47(5), called no evidence and adduced no justification. Termination without notice or hearing after four years of service was therefore unfair.
Whether the Claimants are entitled to the remedies sought
Each claimant awarded seven months' salary as compensation, six months' unpaid salary, one month's notice pay and 75.25 days' leave
Applying Section 49(4) factors including four years of service, the manner of termination, six months without salary and absence of terminal benefits, the court awarded seven months' salary as compensation rather than the maximum twelve. Unpaid salary for six months was uncontested, and the Respondent did not deny the Claimants never took leave, warranting leave pay at 1.75 days per month worked plus one month's notice pay.
Legal principles established
#- In a claim of unfair termination, the employee bears the burden of proving the termination occurred, while the employer bears the burden of justifying the grounds for termination
- An employer who fails to call evidence to controvert a claimant's testimony, supported by NSSF and NHIF records naming it as employer, cannot later deny the employment relationship
- Failure to comply with the fair procedure under Section 41 of the Employment Act renders a termination unfair
Court orders
#- 1.Award to Samuel Muraya of Kshs.287,202 comprising compensation of 7 months' salary (Kshs.119,000), unpaid salary for 6 months (Kshs.102,000), notice pay (Kshs.17,000) and leave for 75.25 days (Kshs.49,202)
- 2.Award to Michael Mutisya of Kshs.253,414 comprising compensation of 7 months' salary (Kshs.105,000), unpaid salary for 6 months (Kshs.90,000), notice pay (Kshs.15,000) and leave for 75.25 days (Kshs.43,414)
- 3.Respondent to pay costs for each claimant
- 4.Decretal sum to attract interest at court rates
- Jurisdiction invoked
- Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (employment and labour relations dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Muraya & another v Victory Construction Company Limited [2018] KEELRC 436 (KLR)", Case Analysis (2018). Consolidated ELRC Cause Nos. 1967/2012 and 1968/2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/436/eng@2018-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.