Francis Mbugua Muthiga v Echuka Farm Limited [2018] KEELRC 1190 (KLR)

The claimant filed records of salary payments including to himself and called a co-employee as witness. The respondent produced no work records, no written licensee agreement, and no records for the other employees. Sections 8, 9 and 10 of the Employment Act place a mandatory duty on employers to issue written contracts and keep records; under section 10(7), failure to produce them shifts the burden to the employer. The Evidence Act does not apply to this court, so the claimant's evidence was believed.

The respondent sold the farm due to revenue losses and all employees parted ways. Redundancy is defined as loss of employment by involuntary means through no fault of the employee, at the initiative of the employer, where the services are superfluous. The loss of employment was involuntary, through no fault of the claimant, and driven by the employer's business circumstances.

Following Kenya Airways Limited v Aviation & Allied Workers Union, an employer must prove the reasons for termination, their validity, and compliance with the procedural requirements of section 40, including notices of termination. The claimant was not given notice, reasons or hearing and was not paid. The respondent failed to demonstrate procedural compliance or substantive justice, rendering the termination unfair.

Severance pay is due at not less than 15 days' pay per completed year under section 40(1)(g). Compensation for unfair termination lies under section 49, awarded at 3 months' salary. Unpaid NSSF/NHIF contributions belong to the statutory bodies, so the court awarded service pay under section 35 instead. Notice pay for an employee without a written contract is one month's salary. Leave was confirmed as claimed, and outstanding salary was unchallenged.