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. 253 of 2017· [2018] KEELRC 2595 (KLR)

Erick Wafula Wetungu v Eastern Produce (K) Ltd (Savani Tea Estate) [2018] KEELRC 2595 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret
25 June 2018
MMM. Mbaru
1,185 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The claimant, employed by the respondent as a Tea Plucker from 2013 at a monthly wage of Kshs.15,000.00, was verbally terminated on 6th February 2017 after sustaining a work injury and suing the employer. He received only Kshs.9,000.00 at termination. The respondent was served but neither entered appearance nor filed a defence, and the claimant's unchallenged sworn evidence proceeded unopposed. The court held that termination for asserting statutory rights under the Work Injury Benefits Act, without notice, reasons or hearing, breached sections 35, 36, 41 and 45 of the Employment Act, 2007 and amounted to unfair termination. Notice pay of Kshs.15,000.00 was awarded, plus compensation of six months' gross wage (Kshs.90,000.00) under section 49, considering the section 45(5) factors. Ancillary claims were largely declined: house allowance because the claimant occupied rent-free employer housing; pro-rata leave and public holiday dues for want of particularisation, pay slips already reflecting holiday wages; overtime because produce-based monthly payments covered hours worked and a further award would be double payment; and service pay because no contractual entitlement was shown given NSSF registration. Judgment was entered for the claimant with costs of the suit.

Key legal issues

#
01

Fairness of termination

Holding

Termination without notice, reasons or hearing following a work injury claim was unfair under section 45 of the Employment Act

Reasoning

The claimant was verbally terminated after sustaining a work injury and suing the employer. No written notice or reasons were issued and no hearing was accorded under section 41. Terminating an employee for asserting statutory rights under the Work Injury Benefits Act is not a lawful reason and breaches both substantive and procedural fairness.

p. 2
02

Remedies for unfair termination

Holding

Notice pay of Kshs.15,000.00 and compensation of six months' gross wage (Kshs.90,000.00) under section 49, taking into account section 45(5) factors and the Kshs.9,000.00 paid at termination

Reasoning

Notice pay follows automatically from termination without due process. For compensation, the court weighed the circumstances, including the small payment made at termination and the section 45(5) factors, and settled on six months' gross wage rather than the twelve months claimed.

p. 2
03

Ancillary monetary claims

Holding

House allowance, pro-rata leave, overtime, service pay and public holiday claims were declined for want of proof or because the benefit was already provided

Reasoning

The claimant's own evidence showed rent-free housing; the leave and holiday claims were not particularised and pay slips already reflected holiday wages; overtime was covered by produce-based payments; and service pay required a contractual foundation absent on the evidence. Even unchallenged claims must be assessed against the applicable law.

p. 2

Legal principles established

#
  • Termination of an employee for asserting statutory rights, such as lodging a work injury claim, is unfair where substantive and procedural fairness is absent
  • Failure to adhere to the procedure in section 41 of the Employment Act renders termination unfair under section 45
  • Unchallenged sworn evidence of a claimant must be believed where the respondent does not file a defence or challenge it

Court orders

#
  1. 1.Judgment entered for the claimant with a finding that his employment was unfairly terminated
  2. 2.Compensation awarded at Kshs.90,000.00
  3. 3.Notice pay awarded at Kshs.15,000.00
  4. 4.Costs of the suit awarded to the claimant

Authorities

#

Legislation

  • Employment Act, 2007section 28
  • Employment Act, 2007section 35
  • Employment Act, 2007section 36
  • Employment Act, 2007section 41
  • Employment Act, 2007section 45
  • Employment Act, 2007section 45(5)
  • Employment Act, 2007section 49
  • Work Injury Benefits Act, 2007not specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over a claim for unfair termination of employment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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, "Erick Wafula Wetungu v Eastern Produce (K) Ltd (Savani Tea Estate) [2018] KEELRC 2595 (KLR)", Case Analysis (2018). Cause No. 253 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2595/eng@2018-06-25

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