James Geita Kabindu v Auto Space Limited & another [2018] KEELRC 894 (KLR)
The bottom line
#A Kenyan court ruled that a letterhead termination letter proved who the employer was, and a redundancy without proper notices was unfair.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer
The Respondent, not the 3rd Party, was the Claimant's employer
The Claimant was initially employed by Farm Auto Spares Ltd, which terminated contracts in December 2008, and employees were taken over by the Respondent from January 2009. The termination letter of 1 November 2010 was on the Respondent's letterhead and his October 2010 pay slip bore the Respondent's logo. The Respondent's director admitted the Respondent paid the Claimant's remuneration up to October 2010. Denying employment and joining a 3rd Party was mischievous.
Unfair termination by redundancy
Termination for restructuring was a redundancy effected without the statutory notices, hence unfair
The stated reason for termination was restructuring, which equates to redundancy on operational requirements. Section 40(1) of the Employment Act, 2007 requires one month advance written notice to both the employee and the local Labour Officer. The Respondent failed to discharge the burden of proving such notices were issued, so the termination was unfair.
Accrued leave
Claim for leave for 2009-2010 of Kshs 119,476/- allowed as unrebutted
The Claimant prayed for leave days not taken, computing them at Kshs 119,476/-. The Respondent neither interrogated nor rebutted these computations. By dint of sections 10(3) and (7) as read with section 28 of the Employment Act, 2007, the Court allowed the head of claim.
Service pay
Not entitled to service pay because he contributed to NSSF
Service pay is unavailable to an employee who is a member of the National Social Security Fund. The Claimant was making NSSF contributions, so this head of claim failed.
Compensation
Compensation assessed at 2 months gross wages (Kshs 141,200/-)
In exercising discretion under the Employment Act, the Court considered the length of the Claimant's employment and assessed compensation equivalent to two months gross wages.
Legal principles established
#- A termination letter on an employer's letterhead plus pay slips bearing its logo are sufficient evidence of an employment relationship with that entity
- In a redundancy, the employer bears the burden of proving one month advance written notice to the employee and the local Labour Officer under section 40(1) of the Employment Act, 2007
Court orders
#- 1.Respondent to pay the Claimant accrued leave of Kshs 119,476/-
- 2.Respondent to pay the Claimant pay in lieu of notice of Kshs 70,600/-
- 3.Respondent to pay the Claimant compensation equivalent to 2 months gross wages of Kshs 141,200/-
- 4.Total award of Kshs 331,276/-
- 5.Respondent to bear the costs of the Claimant and 3rd Party
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Geita Kabindu v Auto Space Limited & another [2018] KEELRC 894 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/894/eng@2018-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.