Jacqueline Kadogo Imbali v Bobby Guard Limited [2019] KEELRC 433 (KLR)
The bottom line
#A Kenyan employer with no written contract who verbally 'redundancies' a worker without notice, hearings or the labour officer's involvement must pay full terminal dues and 12 months' compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee of the Respondent
Yes — the Claimant proved employment on a balance of probabilities through bank statements showing payments by the Respondent; the Respondent, having no written contract, bore the burden under Section 10(7) and did not rebut
The Claimant produced bank statements showing the Respondent paid her salary for three months. No written contract was issued, contrary to Sections 8, 10 and 74(1) of the Employment Act. The claim was undefended, so the evidence stood unchallenged. The court found the employee's account of the oral contract and terms more credible given the employer's statutory default.
Whether the termination was lawful and fair
No — the termination, effected on account of reduction of work (redundancy), failed to comply with Sections 40, 41 and 45(2) of the Employment Act; no notice was issued, the labour officer was not informed, and no selection criteria were explained
The supervisor verbally terminated the Claimant citing a slump in orders, which amounted to redundancy. The mandatory procedures in Section 40 (notification of the labour officer, selection criteria) and Section 41 (hearing) were not followed, and the Respondent did not prove valid reasons under Section 45(2). The termination was therefore unlawful, wrongful and unfair.
Whether the Claimant is entitled to the reliefs sought
Yes — the unchallenged claim for underpayment against the statutory minimum wage and terminal dues was granted in full as prayed
The Claimant's salary of Kshs. 7,000/- fell below the statutory minimum wage under the Regulation of Wages (General) (Amendment) Orders, 2013 and 2015. She worked without leave, rest days, public holiday pay or house allowance, and received no notice pay or severance. The Respondent having not entered appearance, the reliefs sought were unchallenged and were granted as prayed.
Legal principles established
#- Where an employer fails to produce a written contract in legal proceedings, the employer must prove or disprove an alleged term of the employment relationship and the employee's statement must be given more weight
Court orders
#- 1.A declaration that her termination was unlawful and unfair
- 2.Kshs. 108,637.60 as salary underpayment
- 3.Kshs. 10,954.70 salary in lieu of notice
- 4.Kshs. 8,848.03 in lieu of leave
- 5.Kshs. 21,066.73 in lieu of rest days
- 6.Kshs. 3,791.70 in lieu of public holidays
- 7.Kshs. 18,896.90 house allowance
- 8.Kshs. 6,319.95 severance pay
- 9.12 months' compensation Kshs. 131,456.40
- 10.certificate of service
- 11.costs of the suit
- 12.interest on the sums in b, c, d, e, f, g, h and i above at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (as invoked by the parties' pleadings; no specific provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacqueline Kadogo Imbali v Bobby Guard Limited [2019] KEELRC 433 (KLR)", Case Analysis (2019). Cause No 208 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/433/eng@2019-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.