Isaya Kisivuli Ambugu v General Secretary Free Pentecostal Fellowship In Kenya t/a Bukhungu Youth Polytechnic [2018] KEELRC 1988 (KLR)

The claimant produced a letter of reference, a letter sending him on compulsory leave signed by Rev. Julius Bagaka as General Secretary of the respondent, NSSF statements showing contributions from 1995 to 2002, and a wages claim from the County Labour Office addressed to the respondent. These documents were not contested. The respondent's witness admitted Bagaka was General Secretary. His denial of knowledge of the claimant could not override the documentary evidence. The submission that the polytechnic was run by Swedish Mission Council had no evidential or pleading support.

The respondent relied on authorities requiring societies to be sued through named trustees. The court held that this position no longer applies under the Constitution of 2010, Article 159(2), and Sections 3 and 20(1) of the Employment and Labour Relations Court Act, which mandate substantive justice. The Employment Act's definition of employer includes non-legal persons such as firms, agents and managers. Since the employment relationship was established, the claimant could not be denied audience, and no prejudice was occasioned to the respondent.

The claimant testified he was verbally terminated by Rev. Babu of the head office without notice or reasons. Section 41 requires the employer to explain the reasons and hear the employee before termination; this was not done. Section 43 requires valid reasons; none were given. The respondent did not deny that Rev. Babu worked for it, and did not call him to rebut the claimant's averments. The termination therefore failed both substantive and procedural requirements and was unfair under Section 45(2).

Having worked 27 years, the claimant was awarded the maximum 12 months' compensation under Section 49(4). Because his actual salary of Kshs.4,000 was below the statutory minimum, Sections 26 of the Employment Act and 48(1) of the Labour Institutions Act required use of the minimum consolidated wage for a night watchman (Kshs.6,974 plus 15% house allowance). Leave could not be awarded for 27 years due to the 3-year limitation under Section 90, so 63 days were awarded. Costs of Kshs.10,000 were awarded for disbursements given his unrepresented status.