Emily Akinyi Ooko v James Oyondi t/a Betoyo Contractors [2019] KEELRC 672 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant resigned/deserted or was terminated by the Respondent
The Court disbelieved the Respondent's account of voluntary resignation/desertion and found the Respondent and his Supervisor fabricated resignation correspondences after the Claimant lodged a Labour Office complaint
The Court found no plausible reason why a Claimant, whom the Respondent had agreed to accommodate in her studies, would suddenly resign without writing any letter of resignation. The Respondent also shifted reasons, first alleging desertion then citing the expiry of the Postal Corporation contract. Correspondences asserting resignation were crafted only after the Labour Office complaint, indicating fabrication.
Whether termination was unfair for want of valid reason and a hearing
Termination was declared unfair; the Respondent neither showed valid reasons under Section 43 of the Employment Act nor gave the Claimant a hearing
The Respondent did not advise the Claimant that her contract had come to an end and did not hear her on any allegation, including desertion. He also persistently failed to attend Labour Office conciliation. Absent valid reason and hearing, the termination fell foul of Section 43 of the Employment Act and was declared unfair.
Whether the Claimant was a casual employee excluded from statutory benefits
The Court rejected the casual-employment defence; the Respondent's own witnesses conceded she was on contract and paid monthly
Oyondi confirmed on cross-examination that the Claimant was on contract, not casual engagement, and was paid monthly. Kwamboka testified the Claimant was not in casual employment. The casual-employee label could not be sustained to defeat entitlements to house allowance and leave.
Underpayment claim against applicable minimum wage
Claim for underpayment declined for want of proof of the Wages Orders applicable across the employment period
Although Wages Orders set minimum terms under Sections 43 and 48 of the Labour Institutions Act, the Claimant relied only on the 2015 General Wages Order, which took effect in May 2015 when she left. She failed to demonstrate, period by period, the applicable Orders and the shortfalls, so the claim of Kshs. 107,382 was declined.
Legal principles established
#- An employer must show valid and fair reasons justifying termination under Section 43 of the Employment Act, failing which termination is unfair
- An employer who relies on commercial contracts with third parties to define employees' terms must issue the employees contracts of employment aligned to those commercial contracts to benefit from their protection
- Wages Orders made under the Labour Institutions Act constitute minimum terms and conditions of employment, and a casual employee is nonetheless entitled to statutory benefits such as house allowance and leave
- A claimant seeking underpayment must prove the applicable Wages Orders for each period of employment; a Wages Order cannot be applied to the entire period worked when it only came into effect near the end of that period
Court orders
#- 1.It is declared that termination was unfair
- 2.The Respondent shall pay to the Claimant house allowance at Kshs. 38,115; annual and pro-rata leave at Kshs. 17,453; equivalent of 4 months' salary in compensation for unfair termination at Kshs. 30,800; and salary for 4 days worked in May 2015 at Kshs. 1,184 - total Kshs. 87,552
- 3.Certificate of Service to issue
- 4.Costs to the Claimant
- 5.Interest allowed at 14% per annum from the date of Judgment till payment is made in full
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act and the Labour Institutions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emily Akinyi Ooko v James Oyondi t/a Betoyo Contractors [2019] KEELRC 672 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/672/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.