Monica Wanjiku Kahugu v Boniface Kamau & another t/a Highland Foods [2018] KEELRC 2056 (KLR)
The bottom line
#A Kenyan court confirmed that workers without written contracts can win terminal dues claims, but only the specific benefits they can actually prove with evidence.
What this practically means
#Executive summary
#Key legal issues
#Commencement of employment
Employment commenced in August 2010, not October 2010 as pleaded by Respondents
The Respondents did not deny or rebut the Claimant's testimony that she was not issued with a written contract. Although the Respondents pleaded a later commencement date of 20 October 2010, they led no evidence to support that contention. Applying sections 9(2) and 10(2)(d) and (7) of the Employment Act, 2007, the Court accepted the Claimant's uncontroverted testimony that she was employed in August 2010.
Resignation versus desertion
The Claimant validly resigned with appropriate notice and did not desert
The Claimant testified she gave verbal notice of resignation around 1 November 2013, effective end of December 2013, and did not report after the Christmas holidays. This testimony was not controverted or rebutted. The Court therefore found she gave appropriate notice and did not desert or abscond from work, entitling her to accrued entitlements.
Entitlement to leave pay
Claimant awarded Kshs 24,206/50 in lieu of untaken leave under section 10(3) of the Employment Act, 2007
The Claimant testified she never went on annual leave during her tenure. This was not controverted by production of employment records by the Respondents. Having not been granted leave, and in terms of section 10(3) of the Employment Act, 2007, the Court concluded she was entitled to commuted leave pay of Kshs 24,206/50.
Burden of proof on unproved heads of claim
House allowance, service pay, overtime, leave allowance and statutory deduction claims failed for want of proof
The Claimant failed to lay legal, contractual or evidential basis for leave allowance; used an inappropriate wage figure for house allowance; gave muddled testimony on NSSF contributions; did not identify the applicable Regulation of Wages Order or particular public holidays for overtime; and produced no evidence of NSSF registration. For NSSF and NHIF claims she was directed to exhaust statutory remedies first.
Legal principles established
#- Where an employer fails to issue a written contract, the employee's testimony as to commencement of employment and terms stands uncontroverted, read with sections 9(2) and 10(2)(d) and (7) of the Employment Act, 2007
- An employee who gives appropriate notice of resignation does not desert or abscond from work
- A certificate of service is a statutory right of an employee
Court orders
#- 1.Award of Kshs 24,206/50 in lieu of untaken leave
- 2.All other reliefs declined
- 3.Respondents to issue a certificate of service to the Claimant within 14 days
- 4.Claimant to have costs on half scale
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment relationship disputes (Employment Act, 2007 and Labour Relations Act framework; Article 162(2)(a) not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monica Wanjiku Kahugu v Boniface Kamau & another t/a Highland Foods [2018] KEELRC 2056 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2056/eng@2018-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.