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ELRCPartially AllowedELRC Cause No. 531 of 2015 (Consolidated with Cause No. 532 of 2015)· [2019] KEELRC 1067 (KLR)

Evans Okula Lukhumwa v Freight In Time Limited [2019] KEELRC 1067 (KLR)

Employment and Labour Relations Court of Kenya
8 July 2019
HWHellen S. Wasilwa
2,930 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that early termination of a fixed-term contract earns pay for the remaining days, but workers must prove overtime and leave claims.

What this practically means

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Executive summary

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Two consolidated causes were filed by Moses Ochieng Ogutu and Evans Okula Lukhumwa against Freight In Time Limited claiming unlawful and unfair summary dismissal on 10/2/2015 after being accused of stealing foodstuff from a restricted area. Each claimed salary arrears, notice pay, unpaid annual leave, overtime for night shifts, and 12 months' salary compensation; Evans additionally claimed underpayment as a Heavy Commercial Driver. The Respondent denied dismissing them, contending they were on fixed-term contracts, absconded after being found with packets of produce they could not account for, and were treated as deserters. In oral evidence, both Claimants admitted signing the last fixed-term contracts. The court found Moses' contract was to end on 28/2/2015 and he was terminated on 10/2/2015, 18 days early, entitling him to salary for the unexpired period (Kshs. 4,546.13) and one month's notice pay (Kshs. 12,123), totaling Kshs. 16,669.13 plus a certificate of service. Evans' contract had expired on 31/1/2015, so no dismissal could arise, and his entire claim was dismissed save for a certificate of service. Claims for overtime, leave, underpayment and 12 months' compensation failed for want of proof. There were no orders as to costs. Judgment was delivered by Hellen S. Wasilwa J on 8 July 2019.

Key legal issues

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01

Whether the Claimants were dismissed or absconded

Holding

Moses was terminated before his contract ended; Evans' contract had already expired before the alleged dismissal date

Reasoning

The court examined the admitted signed fixed-term contracts. Moses' contract ran to 28/2/2015 and he was dismissed on 10/2/2015, 18 days before expiry. Evans' contract ended 31/1/2015, so a dismissal on 10/2/2015 could not arise. The court accepted CW1's evidence that he was sacked in February 2015.

p. 5
02

Entitlement to terminal dues on early termination of a fixed-term contract

Holding

Moses entitled to salary for the unexpired 18 days and one month's notice pay

Reasoning

Having found Moses was terminated before expiry of his contract, the court awarded the salary for the remainder of the contract period plus one month's salary in lieu of notice, computing the amounts from the admitted figures.

p. 5
03

Overtime and leave claims

Holding

Not proved; dismissed

Reasoning

The Claimants bore the burden of proving overtime and denial of leave. The respondent denied any instruction to work overtime and the Claimants produced no attendance registers or proof of denied leave requests, so the claims failed.

p. 5

Legal principles established

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  • An employee whose fixed-term contract is terminated before expiry is entitled to salary dues for the remainder of the contract period and one month's salary in lieu of notice
  • A party who alleges overtime or denial of leave bears the burden of proving it

Court orders

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  1. 1.Award of Kshs. 4,546.13 being salary for the 18 days remaining on Moses' contract
  2. 2.Award of 1 month's salary in lieu of notice of Kshs. 12,123 to Moses
  3. 3.Total award of Kshs. 16,669.13 to Moses plus issuance of a certificate of service
  4. 4.Issuance of a certificate of service to Evans
  5. 5.Dismissal of Evans' claim
  6. 6.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 28
  • Employment ActSection 41
  • Employment ActSection 42(2)
  • Employment ActSection 43
  • Employment ActSection 44(4)(b)(d) and (e)
  • Employment ActSection 45
  • Employment ActSection 49
  • Regulation of Wages (General Amendment) Order, 2013Heavy Commercial Drivers Order

Cases cited (4)

  • David Nyanjui Mburu –v- Sunmatt Limited
    [2014] eKLR
  • Godfrey Anjere vs Unique Suppliers Limited
    Nairobi ELRC Cause 65 of 2011
  • David Gichana Omuya vs. Mombasa Maize Millers Ltd
    [2014] eKLR
  • BIFU –v- Barclays Bank of Kenya
    Cause 1660 of 2013 (unreported)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (unlimited jurisdiction over employment and labour relations disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Evans Okula Lukhumwa v Freight In Time Limited [2019] KEELRC 1067 (KLR)", Case Analysis (2019). ELRC Cause No. 531 of 2015 (Consolidated with Cause No. 532 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1067/eng@2019-07-08

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