Calister Nyatichi Oriku v EPCO Builders Limited [2018] KEELRC 1194 (KLR)
The bottom line
#A Kenyan court ruled the company was the real employer and had to pay leave, house allowance and service pay, even though the dismissal itself was justified.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer and existence of employment relationship
The claimant was effectively the respondent's employee under section 37 of the Employment Act, since the respondent itself paid her over more than a year and did not join the alleged agent.
The respondent alleged the site agent employed the claimant, but produced payment records showing it paid her weekly throughout 2013. The court held that had the agent been the true employer, the respondent could have applied to join it; having paid the claimant directly for over a year, the statutory presumption in section 37 made the respondent the employer liable for any dues.
Whether the termination was wrongful and unfair
The termination was justified because the claimant, having been absent on sick leave, neither informed the employer within a reasonable time nor produced a medical certificate.
Sections 30 and 34 of the Employment Act protect a sick employee's right to medical attention, but the employee must communicate the sickness to the employer, which may be done through a third party, and must present a medical certificate on resuming duty. The claimant produced no treatment records even in court, so absence without just cause was grounds for summary dismissal under section 44(4).
Terminal dues: annual leave, house allowance and service pay
The claimant was awarded annual leave of Kshs.11,264 for 15 months of full-time service, house allowance at 15% of wage (Kshs.21,600) and service pay of Kshs.4,800 for lack of statutory remittances.
The claimant worked full time from September 2012 to January 2014, about 15 months, earning 21 days' leave for the full year plus 5.2 days for three months under section 28(1). House allowance accrued at 15% of the monthly wage. Under section 35, service pay is due where the employer failed to deduct and remit statutory dues over continuous service exceeding a year.
Legal principles established
#- Where an employer pays an employee directly over a prolonged period despite an alleged site agent, the worker is by operation of section 37 of the Employment Act the employee of the principal.
- An employee absent due to sickness must inform the employer within a reasonable time and support the absence with a medical certificate, failing which the absence may attract summary dismissal.
- Even where termination is justified, accrued terminal dues for work done remain payable.
Court orders
#- 1.Judgment entered for the claimant for payment of due annual leave at Kshs.11,264.00
- 2.Payment of house allowance at Kshs.21,600.00
- 3.Payment of service pay at Kshs.4,800.00
- 4.Each party to pay own costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (section 20) and the Employment Act, 2007; first-instance employment cause
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wesley C Koskey v Style Industries Ltd [2018] KEELRC 15 (KLR)[2018] KEELRC 15 (KLR)14 Jun 2018applied
Cite this brief
#Cite this brief
Caselaw, "Calister Nyatichi Oriku v EPCO Builders Limited [2018] KEELRC 1194 (KLR)", Case Analysis (2018). Cause No. 1082 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1194/eng@2018-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.