Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 136 of 2018 (Consolidated with Cause No. 137 of 2018)· [2018] KEELRC 2541 (KLR)

Abigael Jepkosgei Yator & another v China Hanan International Co. Ltd [2018] KEELRC 2541 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret
31 May 2018
MMM. Mbaru
2,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded two plumbers over Kshs. 780,000 after their employer ended their jobs without following redundancy rules or keeping wage records.

What this practically means

#

Executive summary

#
In this consolidated claim (Cause No. 136 of 2018 with Cause No. 137 of 2018), two former employees of China Hanan International Co. Ltd, employed as Plumbers Grade III from May 2016, sued for unfair termination and outstanding dues after their employment ended on 4th December 2017 without notice, reasons or hearing. The respondent, though served twice with summons and affidavits of service on record, neither entered appearance nor filed a defence or work records, and the claim proceeded as an undefended hearing. The court found, on unchallenged evidence, that the termination arose from reduced work, which in law constitutes redundancy, and that the mandatory procedure in section 40 of the Employment Act - notice to employees, union and labour officer, and selection criteria - was not followed, rendering the termination unfair under sections 43 and 45. Relying on section 10(6) and (7), the court held that where an employer fails to produce work records, the employee's claims as to terms of employment must be taken as true. Applying the Building and Construction Industry wage rates, the court awarded underpayments of Kshs.254,497.50, compensation of ten months' gross wage (Kshs.291,375.00), notice pay of Kshs.29,137.50, unpaid December salary of Kshs.13,597.50, overtime of Kshs.173,368.00 and leave pay of Kshs.20,396.25, and ordered the respondent to issue Certificates of Service within 14 days, with costs to the claimants.

Key legal issues

#
01

Unfair termination through unprocedural redundancy

Holding

The dismissal of the claimants on grounds of reduced work constituted a redundancy which was not conducted in accordance with section 40 of the Employment Act; the termination was unfair for lack of valid and justifiable reason and procedure

Reasoning

The claimants' evidence, unchallenged due to the respondent's non-appearance, was that their employment ended on account of reduced work. Reduced work is redundancy under section 2 of the Employment Act. The mandatory conditions in section 40 - notice to employees, union and labour officer, and selection criteria - were not followed. Under sections 43 and 45, an employer who cannot prove the reason for termination is deemed to have unfairly terminated employment.

p. 4
02

Burden of proof where employer fails to produce employment records

Holding

The duty to keep and produce work records lies on the employer; where records are not produced, the employee's claims as to terms and conditions of employment are accepted as true

Reasoning

Section 10(6) and (7) of the Employment Act requires the employer to keep written particulars for five years after termination, and places the burden of proving or disproving alleged terms of employment on the employer where records are not produced. The respondent filed no appearance, defence or records, so the claimants' unchallenged evidence was accepted and their quantified claims allowed.

p. 2
03

Entitlement to remedies for unfair termination

Holding

The claimants were awarded compensation of ten months' gross wage, notice pay, underpayment differences based on the applicable Wage Orders, unpaid December salary, overtime, leave pay, and a mandatory Certificate of Service

Reasoning

Under section 49, compensation for unfair termination was assessed at ten months' gross wage given the 19 months of service. Notice pay was due under section 40 as no notice was issued. Underpayments were assessed by reference to the Building and Construction Industry (Wage) Order rates applicable to a plumber Grade III, with the claim of Kshs.971.25 per day found justified. A Certificate of Service under section 51 is mandatory and distinct from a discretionary letter of recommendation.

p. 4

Legal principles established

#
  • Where an employer fails to produce work records as required by section 10(6) and (7) of the Employment Act, any claim by the employee as to terms and conditions of employment must be taken as the truth
  • Loss of employment due to reduced work is redundancy, which must follow the mandatory procedure under section 40 of the Employment Act, failing which the termination is unfair
  • Failure to issue notice under section 40 means the employer fails to prove justification for termination and the termination is inherently unfair under sections 43 and 45

Court orders

#
  1. 1.Judgment entered for the claimants against the respondent
  2. 2.Declaration that the termination of employment was procedurally unfair
  3. 3.Compensation awarded at Kshs. 291,375.00
  4. 4.Notice pay at Kshs. 29,137.50
  5. 5.Unpaid salary Kshs. 13,597.50
  6. 6.Overtime work unpaid Kshs. 173,368.00
  7. 7.Leave days not taken Kshs. 20,396.25
  8. 8.Underpayment Kshs. 254,497.50
  9. 9.Certificate of Service to be issued unconditionally within 14 days
  10. 10.Costs of the suit to the claimants

Authorities

#

Legislation

  • Employment ActSection 2 (definition of redundancy)
  • Employment ActSections 10(6) and 10(7)
  • Employment ActSection 28
  • Employment ActSection 40
  • Employment ActSection 43(1) and 43(2)
  • Employment ActSection 45
  • Employment ActSection 49
  • Employment ActSection 51
  • General Wage Orders / Wage Orders, 2017
  • Building and Construction Industry (Wages) Order2012

Cases cited (4)

  • Gilbert Kasumali Kithi versus Nyali Beach Holiday Resort
    [2015] eKLR
  • Henry Ochido versus NGO Co-ordination Board
    [2015] eKLR
  • Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers (KUDHEIHA) versus Aga Khan University Hospital Nairobi
    [2015] eKLR
  • Thomas De La Rue (K) Ltd versus David Opondo Omutelema
    [2013] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (claims under the Employment Act, 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Abigael Jepkosgei Yator & another v China Hanan International Co. Ltd [2018] KEELRC 2541 (KLR)", Case Analysis (2018). Cause No. 136 of 2018 (Consolidated with Cause No. 137 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2541/eng@2018-05-31

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