Rudolf Shitandi Daraja v John Brown Shilenje T/A JB Shilenje & Company Advocates [2018] KEELRC 2468 (KLR)
The bottom line
#A Kenyan court ruled that firing a worker for suing a former employer is unlawful, awarding him over Kshs. 93,000.
What this practically means
#Executive summary
#Key legal issues
#Status of the claimant's employment
The claimant was a protected employee, not a temporary employee, having worked continuously for 16 months on a monthly wage
It was common cause that the claimant worked from 21st August 2013 to 20th December 2014, at least 16 months, on a monthly salary. Section 37(1) of the Employment Act deems such continuous service to convert a casual contract into one payable monthly, attracting the notice protections of Section 35(1)(c). The evidence was unrebutted as the Respondent failed to appear at the hearing.
Whether the employment was unlawfully and unfairly terminated
The claimant was summarily dismissed unlawfully and unfairly in violation of Sections 36, 41, 43 and 45 of the Employment Act
The claimant testified under oath that his employment was terminated because he had sued his former employer, a colleague of the Respondent, and refused to withdraw the suit. The Respondent's own pleadings corroborated this, and its absence at the hearing left the evidence unrebutted. The court found no valid reason for the summary termination, which was without notice or payment.
Reliefs
The claimant was awarded five months' salary compensation, notice pay, gratuity, leave pay and NHIF contributions, but house allowance and underpayment claims failed
Under Section 49(1)(c) as read with Section 49(4), compensation was set at five months' salary given only 16 months of service. Notice pay followed from the summary dismissal without notice. Gratuity was computed at 15 days' salary per completed year under Section 35(5) and (6). House allowance and underpayments were dismissed as unproved.
Legal principles established
#- A casual or temporary employee who works continuously for the equivalent of one month or more, or performs work not reasonably expected to be completed within three months, is deemed to be employed on monthly wages and protected under Sections 35 and 37 of the Employment Act
- Terminating an employee for filing or refusing to withdraw a lawful suit against a former employer is not a valid reason for termination
Court orders
#- 1.Kshs. 50,000/- compensation for unlawful and unfair dismissal
- 2.Kshs. 10,000/- notice pay
- 3.Kshs. 16,000/- in lieu of leave
- 4.Kshs. 15,000/- gratuity
- 5.Kshs. 2,560/- NHIF contributions
- 6.Total award of Kshs. 93,560/- payable with interest at court rates from date of judgment in respect of compensation and from date of filing suit in respect of the rest of the award
- 7.The Respondent to provide the claimant with a certificate of service within 30 days of the judgment
- 8.Costs to follow the result
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 35, 36, 37, 41, 43, 45, 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rudolf Shitandi Daraja v John Brown Shilenje T/A JB Shilenje & Company Advocates [2018] KEELRC 2468 (KLR)", Case Analysis (2018). ELRC No. 196 of 2014 (amended statement of claim dated 30th November, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2468/eng@2018-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.