Leonard Bonyo Olende v Philip Ruto Lopokoyit [2019] KEELRC 1061 (KLR)
The bottom line
#A Kenyan employer without a written contract lost a Ksh.159,493 wages claim because the employee's word outweighed the employer's.
What this practically means
#Executive summary
#Key legal issues
#Effect of the employer's failure to issue a written contract and keep work records
The claimant's word was believed as to the terms and history of employment, subject to admissions in the defence.
Sections 8, 9 and 10 of the Employment Act, 2007 oblige the employer to issue a written contract within two months and to keep records under section 10(6) and (7). The respondent regulated the employment on oral terms and kept no work records save mpesa extracts. That failure disadvantages the employer, so where the accounts conflict the employee's word is believed. However, an unchallenged defence admission that employment ran from 2003 fixed the start date.
Whether termination was unfair
No unfair labour practice was found and no compensation for unfair termination was awarded.
The reasons for summary dismissal were hazy; the claimant said he was replaced by a security firm, the respondent cited misconduct, but no written warnings or documented misconduct existed. Yet the claimant's own evidence showed he was called and notified of the change, and the respondent even assisted him to move his belongings at a cost of ksh.32,000. On that basis the court found the termination occurred with the claimant's full knowledge and declined compensation.
Underpayment of wages
Underpayment assessed at ksh.212,969.00 by applying the applicable Regulation of Wages (General) (Amendment) Orders to the admitted wage history from 2003 to 2014.
In the absence of work records, the court applied the statutory minimum wage orders year by year against the admitted wages of ksh.3,000 (2003-2005), ksh.4,000 (2006-2009) and ksh.5,000 (2010-2014), tabulating the annual shortfalls and totalling ksh.212,969.00.
Offset of amounts already received
ksh.62,500.00 received by the claimant (six months' salary of ksh.30,000 plus ksh.32,500 in gratuity/transport payments) was deducted from the award.
The evidence showed the claimant continued receiving his ksh.5,000 monthly wage for six months after termination, totaling ksh.30,000, and received ksh.15,000 and ksh.17,500 said to relate to transport of goods. Since neither gratuity nor transport was a legal requirement, these payments were admitted and offset against the dues owing.
Legal principles established
#- The duty to issue a written contract of service lies on the employer; where the employer fails to issue one and keeps no work records as required under sections 10(6) and (7) of the Employment Act, the word of the employee must be believed.
- Annual leave cannot be accumulated beyond 18 months because rest cannot be postponed; leave pay in lieu is limited accordingly.
- Gratuity is not payable unless anchored in a private treaty or an employment contract; it has no statutory support of its own.
Court orders
#- 1.Judgment entered for the claimant against the respondent for underpayments of ksh.212,969.00
- 2.Annual leave pay of ksh.9,024.00 awarded
- 3.The total award to be paid less ksh.62,500.00 already received by the claimant
- 4.Payments due to the claimant to be subject to the provisions of section 49(2) of the Employment Act, 2007
- 5.No orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (contract of service dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leonard Bonyo Olende v Philip Ruto Lopokoyit [2019] KEELRC 1061 (KLR)", Case Analysis (2019). Cause No. 303 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1061/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.