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ELRCAllowedCause No 1339 of 2010· [2018] KEELRC 897 (KLR)

Godana Jilo Jirmo v Kartar Singh Construction Limited [2018] KEELRC 897 (KLR)

Employment and Labour Relations Court
19 October 2018
1,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a guard was unfairly fired because of his ethnicity and awarded him over Kshs. 768,000.

What this practically means

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Executive summary

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The claimant, employed as a night guard at the respondent's construction site in Embakasi from 05.06.2005, sued after his employment was terminated on 19.06.2010. He sought a declaration that the termination was unlawful and unfair, a certificate of employment, Kshs. 768,892.35 being dues under section 49 of the Employment Act, underpayments under successive wage orders, interest and costs. The respondent denied the claim and sought dismissal, contending the claimant was a day guard housed at the site, whose employment ended when the construction work was completed, and pleading a set-off of a Kshs. 40,000 loan. The court framed three issues: whether the claimant was a night or day guard; whether the termination was unfair; and entitlement to remedies. The court found the claimant's testimony credible and noted the respondent's own submission admitted night-guard employment, while the respondent's witness gave contradictory evidence and the defence pleadings were internally inconsistent, rendering the defence incredible. The court held the claimant was terminated on account of his ethnicity, amounting to discrimination contrary to section 5(3)(a) of the Employment Act, 2007, and that the dismissal was unfair under section 45 since the reason did not relate to operational requirements or the claimant's conduct, capacity or compatibility. On remedies, the court awarded underpayment, notice pay, leave, public holiday and overtime dues, and the maximum 12 months' salary compensation in light of the discriminatory termination and the claimant's clean record of over five years. Judgment was entered for Kshs. 768,892.35 payable by 15.12.2018, failing which interest would run from the date of judgment; a certificate of service was to be delivered by 15.11.2018; and the respondent was ordered to pay the claimant's costs.

Key legal issues

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01

Status of the claimant's employment (night guard or day guard)

Holding

The claimant was a night guard employed from 05.06.2005 to 19.06.2010; the respondent's own submissions admitted night-guard work

Reasoning

The claimant's testimony that he was a night guard was credible. The respondent's own submission admitted the claimant worked as a night guard at the construction site during the pendency of the construction work, contradicting its witness RW who claimed he was a day guard. The court found the persistent contradictory positions of the respondent rendered the defence case incredible.

p. 1
02

Fairness of the termination

Holding

The termination was unfair and discriminatory on account of ethnicity, contrary to sections 5(3)(a) and 45 of the Employment Act, 2007

Reasoning

RW's account that employment lapsed on completion of the construction work was inconsistent with the pleadings, which alleged the claimant deserted in 2008 and was not entitled to notice. RW's own evidence of two months' notice further contradicted the pleadings. The court found the true reason was the claimant's ethnicity, which is prohibited discrimination and not a valid reason for termination under section 45.

p. 2
03

Remedies entitlement

Holding

The claimant was entitled to underpayment under the applicable Wages Orders, notice pay, leave, public holiday and overtime dues, plus maximum 12 months' compensation and a certificate of service

Reasoning

The claimant cited the relevant Regulation of Wages (Building and Construction) Industry Orders for 2004-2010 and was awarded underpayment as computed in the memorandum of claim. Leave was never granted and the statutory two months' notice was not served. Rest days, public holidays and overtime were established. The discriminatory termination, clean record of over 5 years and absence of contributory fault justified the maximum 12 months' gross salary compensation.

p. 2

Legal principles established

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  • Termination of employment on account of ethnicity amounts to discrimination contrary to section 5(3)(a) of the Employment Act, 2007 and renders the dismissal unfair under section 45
  • A dismissal is unfair where the reason does not relate to operational requirements or the employee's conduct, capacity or compatibility under section 45 of the Employment Act

Court orders

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  1. 1.The declaration that the termination of the claimant's employment by the respondent on 19.06.2010 was unfair and unlawful
  2. 2.The respondent to pay the claimant a sum of Kshs. 768,892.35 by 15.12.2018 failing which interest to be payable thereon from the date of the judgment till full payment
  3. 3.The respondent to deliver a certificate of service by 15.11.2018
  4. 4.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Actsection 49
  • Employment Actsection 45
  • Employment Actsection 5(3)(a)
  • Regulation of Wages (Building and Construction) Industry Order2004, 2005, 2006, 2009 and 2010
  • Legal Notice No.42 of 01.05.2005
  • Legal Notice No.38 of 01.05.2006
  • Legal Notice No.70 of 01.05.2009
  • Legal Notice No.98 of 01.05.2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Godana Jilo Jirmo v Kartar Singh Construction Limited [2018] KEELRC 897 (KLR)", Case Analysis (2018). Cause No 1339 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/897/eng@2018-10-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.