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ELRCPartially AllowedCause No. 2557 of 2012· [2018] KEELRC 2205 (KLR)

Dennis Owino Oduor v Jonyako Services Limited [2018] KEELRC 2205 (KLR)

Employment and Labour Relations Court
22 March 2018
HWHellen S. Wasilwa
784 words in judgment
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The bottom line

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A Kenyan employer who denied employing a worker, kept no records and issued no contract lost the dispute and was ordered to pay damages and costs.

What this practically means

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Executive summary

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The Claimant, employed as an Electrician from March 2010 at a monthly salary of Kshs. 15,000, claimed he was summarily dismissed on 12 October 2012 after false allegations of stealing a soldering iron, terminals and bulbs he had purchased, and without payment of terminal dues. He sought Kshs. 317,721 in terminal dues plus return of his confiscated toolbox. The Respondent denied employing the Claimant, later asserting piece-rate engagement at Kshs. 600 per day, denied the recommendation letter, and asserted the Claimant absconded. The court found the employment relationship established from 2010 to 2012, noting the Respondent had written letters to NHIF and the Claimant's landlord confirming employment. Relying on section 74 of the Employment Act obliging employers to keep records, and the absence of any records, the court drew an adverse inference against the Respondent. Applying section 10(7) of the Employment Act, the court held the onus of disproving the contract terms lay on the employer, rejected the piece-rate contention, and accepted the Claimant's terms of Kshs. 15,000 monthly. The court found no valid reason or due process for the dismissal and held it unfair and unjustified. The court awarded notice pay, October 2012 salary, severance pay of 15 days per year for two years, house allowance at 15% for 24 months, totalling Kshs. 90,923, a Certificate of Service, and costs with interest from the date of judgment. The claim was only partially allowed, as the award fell short of the Kshs. 317,721 claimed, and the toolbox claim was not addressed in the final orders.

Key legal issues

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01

Existence of an employment relationship

Holding

The court found the Respondent had employed the Claimant from 2010 to 2012, despite the Respondent's denial

Reasoning

The Respondent's defence was inconsistent: it denied employing the Claimant, yet admitted writing letters to NHIF and the Claimant's landlord confirming employment, and a letter on Respondent's letterhead indicated employment. The court therefore found the employment relationship existed as pleaded for the period 2010 to 2012.

p. 1
02

Burden of proof regarding employment terms

Holding

The Respondent's claim of piece-rate employment was not proved; the Claimant's account of monthly salary of Kshs. 15,000 was accepted

Reasoning

Section 74 of the Employment Act obliges employers to keep employment records. The Respondent produced none, even for its alleged piece-rate arrangement. Under section 10(7), the onus of disproving the terms of the contract falls on the employer who fails to issue an employment letter, so the Claimant's stated terms were adopted.

p. 1
03

Fairness of the summary dismissal

Holding

The dismissal was found unfair and unjustified

Reasoning

There was no indication of how the relationship was terminated. The Respondent did not demonstrate a valid reason for the dismissal nor that due process under the Employment Act was followed. The theft allegation was not proved, and the dismissal was therefore unfair and unjustified.

p. 2

Legal principles established

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  • Where an employer fails to keep employment records as required under section 74 of the Employment Act, the court may infer the records would be detrimental to the employer's case
  • Where an employer fails to provide an employment letter, the onus of disproving the terms of the contract lies on the employer (section 10(7) Employment Act)

Court orders

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  1. 1.Payment of one month salary in lieu of notice of Kshs. 15,000
  2. 2.Payment of salary for October 2012 of Kshs. 6,923
  3. 3.Payment of severance pay of 15 days for 2 years worked of Kshs. 15,000
  4. 4.Payment of house allowance for 24 months of Kshs. 54,000
  5. 5.Issuance of a Certificate of Service
  6. 6.Costs of the case plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsection 74
  • Employment Actsection 10(7)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007)

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, "Dennis Owino Oduor v Jonyako Services Limited [2018] KEELRC 2205 (KLR)", Case Analysis (2018). Cause No. 2557 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2205/eng@2018-03-22

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