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ELRCPartially AllowedCause No. 46 of 2018· [2018] KEELRC 940 (KLR)

Kipyegon Kilel Richard v Mogogosiek Tea Factory Co. Ltd [2018] KEELRC 940 (KLR)

Employment and Labour Relations Court of Kenya
9 October 2018
DMD. K. Njagi Marete
1,218 words in judgment
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The bottom line

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A Kericho court ruled a tea factory worker was unfairly fired, awarding him over Kshs.343,000 because his employer skipped proper dismissal procedures.

What this practically means

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Executive summary

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The claimant was employed by the respondent in the boiler stoker section from about January 2006 at a gross salary of Kshs.38,188.60 at termination, and was dismissed in April 2016. He claimed wrongful, unfair and unlawful termination for non-compliance with sections 41(1) and 44(4) of the Employment Act, 2007, and sought one month's notice pay, unpaid leave for ten years, gratuity/service pay, twelve months' compensation under the Labour Institutions Act, general damages for violation of constitutional rights, interest, a certificate of service and reinstatement. The respondent denied the claim, asserting the claimant was a contractual, seasonal employee whose terminal dues were paid in full and that the dismissal complied with sections 41(1) and 44(4) of the Employment Act. It relied on Josphat Njuguna v Highrise Self Group and Persteeno Omondi v Steel Makers Ltd to argue that a seasonal employee was not entitled to the reliefs claimed. The parties agreed to determination by written submissions. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. It found the termination was without regard to procedure and the subsisting Collective Bargaining Agreement and therefore unlawful. The claimant was awarded one month's salary in lieu of notice and eight months' salary as compensation for unlawful termination, totalling Kshs.343,697.40, with costs to the respondent. The judgment is a first-instance decision of the Employment and Labour Relations Court at Kericho delivered by D. K. Njagi Marete, J on 9th October 2018.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

Yes. The termination was effected without regard to procedure and the subsisting Collective Bargaining Agreement, contravening sections 41(1) and 44(4) of the Employment Act, 2007.

Reasoning

The claimant submitted that the respondent never complied with section 41(1), which requires the employer to explain reasons for intended dismissal in a language the employee understands and allow presence of a fellow employee or union representative, and that the employee was never given an opportunity to dispute allegations under section 44(4). The court found the claimant's case overwhelming and held the termination unlawful.

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02

Whether the claimant is entitled to the relief sought

Holding

Yes in part. Having succeeded on unlawful termination, the claimant was awarded one month's salary in lieu of notice and eight months' salary as compensation, totalling Kshs.343,697.40.

Reasoning

The court held that having won on unlawful termination, the claimant became entitled to relief, but it assessed compensation at eight months' salary rather than the twelve months claimed under section 49(1)(c) of the Employment Act and section 15(c) of the Labour Institutions Act, and did not award the leave, gratuity and constitutional damages sought.

p. 3

Legal principles established

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  • An employer who terminates employment without regard to procedure and applicable law effects an unlawful termination entitling the employee to relief.
  • Where an employer fails to produce a written contract in legal proceedings, the burden of proving or disproving an alleged term of employment rests on the employer.

Court orders

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  1. 1.One month salary in lieu of notice of Kshs.38,188.60
  2. 2.Eight months salary as compensation for unlawful termination of employment, being Kshs.38,188.60 x 8 = Kshs.305,508.80
  3. 3.Total award of Kshs.343,697.40
  4. 4.Costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Actsections 10(7), 37(1), 41(1), 44(4), 49(1)(c)
  • Labour Institutions Actsection 15 (as cited by claimant, s.15(c))
  • Employment Act 2007Section 41(1)
  • Employment ActSection 44(4)

Cases cited (2)

  • Josphat Njuguna v Highrise Self Group
    [2014] eKLR
  • Persteeno Omondi v Steel Makers Ltd
    [2007] eKLR
Jurisdiction invoked
Employment and Labour Relations Court established under Article 162(2) of the Constitution; claim brought under the Employment Act, 2007 and the Labour Institutions Act

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, "Kipyegon Kilel Richard v Mogogosiek Tea Factory Co. Ltd [2018] KEELRC 940 (KLR)", Case Analysis (2018). Cause No. 46 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/940/eng@2018-10-09

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