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ELRCPartially AllowedCause No 1392 of 2015· [2019] KEELRC 998 (KLR)

Victor Sendeu Omwenga v General Timothy Misiani Orwenyo t/a Gmt Services [2019] KEELRC 998 (KLR)

Employment and Labour Relations Court
26 July 2019
OMOnesmus Makau
2,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a phone-call dismissal without a hearing was unfair, awarding an employee over Kshs. 211,000 despite the employer denying he was staff.

What this practically means

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Executive summary

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The Claimant sued for wrongful and unfair termination of employment on account of redundancy and non-payment of accrued dues, claiming salary arrears, pay in lieu of notice, 12 months' compensation, accrued leave, severance pay, extensive overtime, a Certificate of Service, costs and interest. He alleged he was employed from December 2002 as a Loader and later Storekeeper at a monthly salary that rose from Kshs.5,500 to Kshs.10,000, worked 6 am to 6 pm daily without leave or overtime pay, and was dismissed by phone call on 30/07/2014 without a hearing. The Respondent denied any employment relationship, contending the Claimant operated an independent garage that repaired his vehicles for a fee. The Claimant testified and called the Respondent's foreman (CW2), producing a Muster Roll and an Mpesa Statement; the Respondent adduced no evidence. The court framed three issues: existence of an employment relationship, fairness of termination, and entitlement to reliefs. Applying Everret Aviation, the court held on a balance of probability that the Claimant was an employee, dismissing the independent contractor defence. On the uncontroverted evidence, the termination was found unfair and unlawful under sections 41 and 45 of the Employment Act. The court awarded Kshs.211,903.85: Kshs.7,000 salary arrears, Kshs.10,000 notice pay, Kshs.100,000 as 10 months' compensation under sections 49 and 50, and Kshs.94,903.85 accrued leave, subject to statutory deductions, plus a Certificate of Service, costs and interest. Severance pay was refused (no redundancy) and the overtime claim was refused as exaggerated and unsupported by attendance records.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondent

Holding

The Claimant was an employee of the Respondent within the meaning of section 2 of the Employment Act, proved by the Muster Roll and Mpesa Statement, and the defence of independent garage operation was dismissed.

Reasoning

The burden of proving the employment relationship rested on the Claimant. He produced a Muster Roll he signed to receive salary and an Mpesa Statement showing money sent by the Respondent to the Foreman who paid employees. The Respondent adduced no evidence to rebut this. Relying on Everret Aviation Limited v Kenya Revenue Authority on the significance of documentation and mode of payment, the court found on a balance of probability that an employment relationship existed.

p. 4
02

Whether the termination was unfair and unlawful

Holding

The termination was unfair and unlawful within the meaning of section 45 of the Employment Act.

Reasoning

The Claimant testified he was dismissed by phone through the Foreman without a hearing and without valid reason, and this evidence was uncontroverted. Under section 45(2) the employer must prove valid and fair reasons and fair procedure, and under section 41 the employer must explain reasons and hear representations before termination. The Respondent failed to discharge this burden, having tendered no evidence at all.

p. 4
03

Whether the Claimant was entitled to the reliefs sought

Holding

The Claimant was awarded salary arrears, one month's notice pay, 10 months' compensation, accrued leave and a Certificate of Service, but severance and overtime were refused.

Reasoning

Having found the termination unfair, the court exercised its discretion under sections 49 and 50 of the Employment Act to award 10 months' gross salary compensation, considering the Claimant's long service of over 11 years without disciplinary issues and his lack of contribution through misconduct. Leave was awarded for 11.75 years as the Respondent did not disprove it with leave records. Severance failed because there was no redundancy, and the overtime claim failed as exaggerated and unsupported by attendance records.

p. 4

Legal principles established

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  • The fundamental behaviour of the parties, such as documentation evidencing the relationship and mode of payment, is critical in determining whether an employment relationship exists.
  • Under section 45(2) of the Employment Act, termination is unfair unless the employer proves both valid and fair reasons and a fair procedure.
  • Where an employer fails to tender any evidence to rebut the claimant's evidence, the claimant's uncontroverted evidence is taken as proved on a balance of probability.

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent in the sum of Kshs.211,903.85 comprising salary arrears of Kshs.7,000, one month salary in lieu of notice of Kshs.10,000, accrued leave of Kshs.94,903.85 and 10 months' salary compensation of Kshs.100,000
  2. 2.The award is subject to statutory deductions
  3. 3.The Claimant is awarded a Certificate of Service in accordance with section 51 of the Employment Act
  4. 4.The Claimant is awarded costs of the suit
  5. 5.Interest on the award at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 9
  • Employment ActSection 10(7)
  • Employment ActSection 28
  • Employment ActSection 35
  • Employment ActSection 36
  • Employment ActSection 41(1) and (2)
  • Employment ActSection 45(2), 45(4)(b)
  • Employment ActSection 47(5)
  • Employment ActSection 49(1) read with Section 50
  • Employment ActSection 51
  • Regulation of Wages (General) OrderRule 6

Cases cited (4)

  • Walter Ogal Anuro –v- Teachers Service Commission
    [2013] eKLR
  • David Gichana Omuya –v- Mombasa Maize Millers Limited
    [2014] eKLR
  • Evans Katiezo Aligulah –v- Eldomatt Wholesale and Supermarket Ltd
    [2016] eKLR
  • Everret Aviation Limited –vs- the Kenya Revenue Authority
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance claim for unfair termination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Victor Sendeu Omwenga v General Timothy Misiani Orwenyo t/a Gmt Services [2019] KEELRC 998 (KLR)", Case Analysis (2019). Cause No 1392 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/998/eng@2019-07-26

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