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ELRCPartially AllowedCause Number 426 of 2011· [2018] KEELRC 1682 (KLR)

Gideon Katila Kula v Telkom Kenya Limited [2018] KEELRC 1682 (KLR)

Employment and Labour Relations Court of Kenya
13 April 2018
ANAbuodha J. N.OMOnesmus Makau
1,907 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Telkom Kenya had to pay a former sports club worker for unfair termination because the company controlled the club, proving you cannot escape employer duties through informal arrangements.

What this practically means

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Executive summary

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The claimant sued Telkom Kenya Limited claiming Kshs 6,731,690 as terminal dues, contending that he was employed on 1st July 1993 by the respondent's predecessor, Kenya Posts and Telecommunication Corporation, as a bar man at its sports club, rising to club manager, and that after the KPTC split the respondent promised to pay his dues but failed to do so. He averred he was never issued a formal employment letter and never went on off days. The respondent denied any employer-employee relationship, asserting that the sports club was a members' club run by an elected committee which employed its own staff, that the claimant was not among employees transferred to it under Legal Notice 157 of 1999, and that the salary claim was statute barred. The claimant called witnesses who testified he worked under the respondent's control, was paid through the welfare department and never received a payslip. The respondent's witnesses maintained the claimant belonged to the club. The court found the respondent heavily present in the club's affairs - owning the land, paying utility bills and directing use of facilities - with no evidence that a committee employed the claimant. It held that the claimant was the respondent's employee, a victim of the old regime allowing indefinite casual status, and that his eviction from the premises on 27th January 2012 was unlawful and unfair termination. The court awarded one month's salary in lieu of notice (Kshs 3,500), service pay of Kshs 31,500, twelve months' salary for unfair termination (Kshs 42,000), plus costs, all subject to taxes and statutory deductions.

Key legal issues

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01

Employer-employee relationship between claimant and respondent

Holding

The claimant was an employee of the respondent, not of the club committee

Reasoning

The court found the respondent heavily present in the affairs of the club: it owned the land on which the club stood, paid its utility bills and gave directions on usage of club facilities. No evidence showed the claimant was employed by a committee. The failure to issue an appointment letter or personnel number was the employer's responsibility, not the claimant's fault.

p. 2
02

Whether the eviction amounted to unfair termination

Holding

The claimant's eviction from the respondent's premises on 27th January 2012 was unlawful and unfair termination

Reasoning

Having found an employment relationship, the court held that locking the claimant out of the premises without notice on 27th January 2012 constituted unfair termination, entitling him to the maximum twelve months' salary as compensation.

p. 2

Legal principles established

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  • An employee retained in casual status beyond one month of continuous service is deemed a regular employee entitled to monthly wages and statutory termination procedure
  • It is the responsibility of the employer to issue an appointment letter; absence of one cannot be held against the employee

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs 3,500
  2. 2.Service pay at the rate of 15 days pay for each complete year of service - Kshs 31,500
  3. 3.Twelve months' salary for unfair termination of service - Kshs 42,000
  4. 4.Costs of the suit to the claimant
  5. 5.Items (a), (b) and (c) shall be subject to taxes and statutory deductions

Authorities

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Legislation

  • Employment Actprovisions on casual employees
  • Legal Notice Number 157 of 1999transfer of KPTC employees to Communications Commission of Kenya, Postal Corporation of Kenya and the respondent
  • Legal Notice Number 158 of 1999transfer of assets of defunct KPTC to the respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act; ELRC established under Article 162(2) of the Constitution)

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, "Gideon Katila Kula v Telkom Kenya Limited [2018] KEELRC 1682 (KLR)", Case Analysis (2018). Cause Number 426 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1682/eng@2018-04-13

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