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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 576 (KLR)

Ignatius Kivata Mutua v Hosteling International [2019] KEELRC 576 (KLR)

Employment and Labour Relations Court
30 September 2019
HWHellen Wasilwa
2,490 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled the international hostel federation—not the local association—was the employer, and awarded a manager Kshs. 650,000 for unlawful termination.

What this practically means

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Executive summary

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The Claimant, Ignatius Kivata Mutua, sued Hosteling International (initially International Youth Hostel Federation), alleging he was employed by the Respondent in 1995 as Manager of the Nairobi Youth Hostel and that after the hostel was sold to settle a loan, the Respondent stopped paying his salary from May 2013 and terminated his employment without notice, explanation or terminal dues. He sought a written explanation on his employment status, one month's salary in lieu of notice, accumulated salaries, general damages, interest and costs. The Respondent denied the employment relationship, contending the Claimant was employed by the Kenya Youth Hostel Association, a distinct legal entity, and that his own sworn statements in other suits admitted as much; it called no witnesses. The court framed two issues: who the Claimant's employer was and whether he was entitled to the remedies sought. Relying on the loan agreement giving the Federation full control over the hostel and the Manager's appointment and termination, and on the Federation's own reports confirming the appointment was its prerogative, the court held the Claimant was the Respondent's employee. The Respondent's pleadings and unadmitted documents carried no weight since it adduced no evidence, leaving the Claimant's case uncontroverted. The court found the termination effective May 2013 was unlawful and awarded one month's salary in lieu of notice plus twelve months' salary as compensation, totaling Kshs. 650,000, with costs and interest from the date of judgment. Prayers for accumulated salaries and a status explanation were effectively not granted as pleaded.

Key legal issues

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01

Identity of the Claimant's employer

Holding

The Claimant was an employee of the Respondent (the Federation), not the Kenya Youth Hostel Association

Reasoning

The loan agreement gave the Federation full control and management of the hostel, including appointment and termination of the Manager, which could not be done by KYHA without the Federation's written consent. The Federation's documents (1999 brief, 2003 report) confirmed the Claimant's appointment was the Federation's prerogative. The Respondent's defence and unadmitted documents carried no evidential weight as it called no witnesses, leaving the Claimant's case uncontroverted.

p. 4
02

Whether the termination was unlawful and what remedies flow

Holding

The Respondent terminated the Claimant's services with effect from May 2013 without notice or terminal dues; the Claimant is awarded one month's salary in lieu of notice and 12 months' salary as compensation for unlawful termination

Reasoning

The Respondent sold or abandoned the Nairobi business without explaining the Claimant's position or paying terminal dues. Failure to pay salary from May 2013 amounted to termination by the Respondent's conduct, contrary to the Employment Act requirements on notice and fair procedure, entitling the Claimant to notice pay and compensation.

p. 4

Legal principles established

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  • Pleadings and unproduced documents marked for identification but not admitted in evidence cannot be treated as evidence where a party calls no witnesses
  • Control over appointment and termination of an employee is indicative of the employer-employee relationship

Court orders

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  1. 1.Payment of 1 month salary in lieu of notice of Kshs. 50,000/=
  2. 2.Payment of 12 months' salary as compensation for unlawful termination, Kshs. 600,000/=
  3. 3.Total award of Kshs. 650,000/=
  4. 4.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment Actdefinition of 'employee' and 'employer'; Sections 35, 36, 43, 45, 46
  • Evidence ActSections 107-109

Cases cited (3)

  • Moses Ochieng v Unilever Kenya Limited
    [2018] eKLR
  • Der Raj Sharma v Reginam
    (1953) 19 EACA 310
  • Michael Hausa v the State
    (1994) 7-8 SCANJ 144
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act); specific provision not cited

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, "Ignatius Kivata Mutua v Hosteling International [2019] KEELRC 576 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/576/eng@2019-09-30

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