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ELRCPartially AllowedStatement of claim dated 29th August 2013, filed 2nd September 2013· [2018] KEELRC 1252 (KLR)

Patrick Musyoka Kakuli v Kariuki Ngari [2018] KEELRC 1252 (KLR)

Employment and Labour Relations Court
17 August 2018
MOMAUREEN ONYANGO
1,439 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent as a driver from April 2004 until April 2013, primarily to ferry the respondent's children to and from school, sued for unlawful and unfair termination, claiming terminal benefits of Kshs.1,984,042, twelve months' salary as damages, a certificate of service, costs and interest. The respondent denied the claim and counterclaimed for Kshs.541,000, alleging an unpaid Kshs.500,000 house-building loan, fuel drawn on his K-card after termination, and a Kshs.24,000 salary advance balance. The claimant testified in person while the respondent called three witnesses. The court found the termination followed damage to two motor vehicles but was effected without the hearing envisaged under Section 41 of the Employment Act, rendering it unprocedural and unfair. On remedies, the claimant received pay in lieu of notice (Kshs.25,000), unpaid March 2013 salary (Kshs.25,000), service pay for ten years (Kshs.125,000), and compensation of six months' salary (Kshs.150,000), totaling Kshs.325,000. Claims for annual leave, house allowance, overtime, public holidays and NSSF/NHIF refunds failed for lack of proof or because the consolidated salary covered them. The counterclaim was dismissed: under Sections 10 and 74 of the Employment Act the burden of keeping records of monies advanced lies on the employer, and the respondent produced none. Each party was ordered to bear its own costs, with interest on the decretal sum from the date of judgment.

Key legal issues

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01

Procedural fairness of termination

Holding

Termination was unfair for want of a hearing under Section 41 of the Employment Act

Reasoning

The employment was terminated following damage to two motor vehicles, which the claimant did not deny. However, the respondent gave no hearing as required by Section 41 of the Employment Act. Procedural fairness is a statutory prerequisite; its absence renders an otherwise substantively justified dismissal unprocedural and unfair, entitling the employee to compensation.

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02

Burden of proof of employment records and counterclaim

Holding

Respondent failed to prove the counterclaim for Kshs.541,000

Reasoning

Under Sections 10 and 74 of the Employment Act, the employer must keep records of all monies advanced to an employee. The respondent produced no such records for the alleged Kshs.500,000 house-building loan, the K-card fuel drawings, or the Kshs.30,000 salary advance. The burden of proving employment records rests on the employer and was not discharged.

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03

Remedies for unfair termination

Holding

Claimant awarded notice pay, unpaid March 2013 salary, service pay and six months' salary compensation

Reasoning

The claimant was entitled to salary in lieu of notice and unpaid March 2013 salary. Service pay was due because the respondent admitted not remitting NSSF. Compensation for unfair termination was fixed at six months' salary, considering the circumstances of termination, length of service (10 years) and reasons for termination. Leave, house allowance, overtime and public holiday claims failed on proof.

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Legal principles established

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  • Termination without a hearing as envisaged under Section 41 of the Employment Act is unprocedural and therefore unfair.
  • The law places the burden of proof of all employment records on employers, including records of monies advanced to employees.

Court orders

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  1. 1.Judgment entered in favour of the claimant in the total sum of Kshs.325,000 comprising: pay in lieu of notice Kshs.25,000; salary of March 2013 Kshs.25,000; service pay (10 years at 15 days salary per year worked) Kshs.125,000; compensation Kshs.150,000
  2. 2.Counterclaim dismissed
  3. 3.Each party to bear its own costs for both the claim and counterclaim
  4. 4.Interest to accrue on the decretal sum from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSections 10 and 74
  • Regulation of Wages and Conditions of Employment (General) Orderas amended
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; statement of claim under the court's procedure)

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, "Patrick Musyoka Kakuli v Kariuki Ngari [2018] KEELRC 1252 (KLR)", Case Analysis (2018). Statement of claim dated 29th August 2013, filed 2nd September 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1252/eng@2018-08-17

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