Staus Khakali v Monica Maina t/a Almon Products [2018] KEELRC 1840 (KLR)
The bottom line
#A Kenyan court ruled an employer who denied employing a worker, ignored due process, and offered no proof of a valid reason must pay unfair termination damages.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship
An employment relationship existed; the claimant was a regular employee, not a casual worker or independent contractor.
The claimant's appendix contained a letter from the respondent dated 19.7.2011 listing her staff members, with the claimant named among her regular members while casuals were listed separately. The court held this demonstrated the claimant was an employee and not a casual. The respondent's failure to issue a written contract as required by Section 9(1) shifted the burden of proving contract terms to her under Section 10(7).
Validity of the reason for termination
The termination was without valid reason; the respondent failed to discharge the burden under Section 43.
The respondent contended the claimant absconded after items went missing, but the court found this could not be true given its finding that the claimant was not a casual. The respondent also ignored summons from the Labour Officer and demand letters, which she should have responded to if abscondment were genuine. Under Section 43, an employer must prove the reason for termination, failing which the termination is unfair under Section 45.
Due process before termination
The respondent failed to follow the procedural requirements of Section 41 of the Employment Act.
Section 41 requires an employer, before terminating on grounds of misconduct, poor performance or physical incapacity, to explain the reasons to the employee in a language he understands and to hear and consider any representations. No such explanation or hearing occurred; the claimant was dismissed verbally. The court therefore found the termination procedurally unfair and unjustified.
Legal principles established
#- Where an employer fails to issue a written contract, the burden of proving or disproving the terms of the contract lies on the employer.
- An employer who fails to prove the reason for termination of employment, or who denies the employment relationship itself rather than addressing the reason, renders the termination unfair.
Court orders
#- 1.1 month salary in lieu of notice of Kshs. 8,000
- 2.House allowance at 15% of salary for 36 months of Kshs. 43,200
- 3.Leave for 1 year of Kshs. 8,000
- 4.Service pay for 3 years of Kshs. 12,000
- 5.6 months' salary as compensation for unlawful termination of Kshs. 48,000 (total award Kshs. 154,400)
- 6.Respondent to issue the Claimant with a Certificate of Service
- 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Staus Khakali v Monica Maina t/a Almon Products [2018] KEELRC 1840 (KLR)", Case Analysis (2018). Cause No. 1890 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1840/eng@2018-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.