Mwinyihaji Hamisi v Cook ‘’N’’ Lite Limited [2019] KEELRC 799 (KLR)
The bottom line
#A Kenyan court ruled an employer must prove why it ended a worker's job, and treated years worked under a predecessor company as continuous service.
What this practically means
#Executive summary
#Key legal issues
#Continuity of employment across a change of corporate entity
The Claimant's service from 1991 under Kaluworks Limited counted as service under the Respondent
The Respondent was incorporated in 1998 and started operations in 1999, but the Claimant was employed in 1991 by Kaluworks Limited, the Respondent's predecessor. RW Sajja confirmed Kaluworks was the Respondent's precursor and that employees did not take part in the changeover; management did not change. The Court therefore treated the two companies as the same business operated through different vehicles, and the Claimant as having worked 23 years.
Whether termination was unfair
Termination was unfair; the Respondent failed to prove the reason for ending the employment
The Claimant reported back after one year of sick leave following a road accident. The Respondent claimed it offered reassignment, but there was no document or written offer evidencing that advice. The Court found the Respondent was not keen on reabsorbing him and had not shown he left voluntarily or declined an offer to keep working. Burden of proving the reason for termination lay on the Respondent.
Applicable rate for computing notice and compensation
Kshs. 508 daily (Kshs. 15,240 monthly) applied per Section 37(2) of the Employment Act
Having failed to establish underpayment, the Claimant's applicable wage was the Kshs. 508 daily rate earned by the time of termination. Translated to a monthly figure of Kshs. 15,240, this formed the basis for computing notice pay and compensation in accordance with Section 37(2) of the Employment Act 2007.
Quantum of compensation for unfair termination
Equivalent of 7 ½ months' salary awarded
The Claimant worked 23 years with an unblemished record, offered himself for duty after sick leave and played no role in the decision to keep him from resuming work. The Court assessed compensation at 7 ½ months' gross salary, amounting to Kshs. 114,300.
Legal principles established
#- The burden lies on the employer to prove the reason for termination
- Where a business is carried on through different corporate vehicles without change of management, the employees' continuity of service is preserved
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay notice pay of Kshs. 15,240
- 3.Respondent to pay compensation for unfair termination equivalent of 7 ½ months' salary at Kshs. 114,300 (total Kshs. 129,540)
- 4.Certificate of Service to issue
- 5.Costs to the Claimant
- 6.Interest at 14% per annum from date of Judgment till payment in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act 2007 invoked); no specific constitutional provision stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwinyihaji Hamisi v Cook ‘’N’’ Lite Limited [2019] KEELRC 799 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/799/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.