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ELRCAllowedCause No 208 of 2017· [2019] KEELRC 433 (KLR)

Jacqueline Kadogo Imbali v Bobby Guard Limited [2019] KEELRC 433 (KLR)

Employment and Labour Relations Court
5 November 2019
1,454 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant sued the Respondent for unlawful dismissal and unpaid terminal dues. She alleged she was employed as a security guard from 15th January 2015 on a salary of Kshs. 7,000/- with no written contract, and that on 30th December 2015 her supervisor verbally terminated her on account of a slump in orders, directing her to leave with a promise of recall that never materialised. She alleged no notice of termination, no notification of the labour officer, no explained selection criteria, non-payment of December 2015 salary and three months' wages, and denial of leave, rest days, public holiday pay, house allowance and a certificate of service, all contrary to statutory minimum wage orders. The suit was undefended as the Respondent neither entered appearance nor filed a response. The court framed three issues: employment, lawfulness of termination, and entitlement to reliefs. It found the Claimant had proved her case on a balance of probabilities; her bank statements showed payment below the statutory minimum wage, and under Section 10(7) of the Employment Act the Respondent, lacking a written contract, could not disprove the alleged terms. The verbal termination for reduced work amounted to a redundancy effected without complying with Sections 40, 41 and 45(2). Judgment was entered in full: a declaration that the termination was unlawful and unfair, underpayment of Kshs. 108,637.60, notice pay, leave, rest days, public holidays, house allowance, severance pay, twelve months' compensation, a certificate of service, costs and interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Whether the Claimant was an employee of the Respondent

Holding

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

Reasoning

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.

p. 2
02

Whether the termination was lawful and fair

Holding

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

Reasoning

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.

p. 2
03

Whether the Claimant is entitled to the reliefs sought

Holding

Yes — the unchallenged claim for underpayment against the statutory minimum wage and terminal dues was granted in full as prayed

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.A declaration that her termination was unlawful and unfair
  2. 2.Kshs. 108,637.60 as salary underpayment
  3. 3.Kshs. 10,954.70 salary in lieu of notice
  4. 4.Kshs. 8,848.03 in lieu of leave
  5. 5.Kshs. 21,066.73 in lieu of rest days
  6. 6.Kshs. 3,791.70 in lieu of public holidays
  7. 7.Kshs. 18,896.90 house allowance
  8. 8.Kshs. 6,319.95 severance pay
  9. 9.12 months' compensation Kshs. 131,456.40
  10. 10.certificate of service
  11. 11.costs of the suit
  12. 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

Authorities

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Legislation

  • Employment ActSection 8
  • Employment ActSection 10(7)
  • Employment ActSection 74(1)
  • Employment ActSection 40
  • Employment ActSection 41
  • Employment ActSection 45(2)
  • Regulation of Wages (General) (Amendment) Order2013
  • Regulation of Wages (General) (Amendment) Order2015

Cases cited (2)

  • Josephine M. Akinyi O v Farhiyo Mohamed
    [2016] eKLR
  • Kevin Ziro Pole v Elsek & Elsek Limited
    [2015] eKLR
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

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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, "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.