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ELRCPartially AllowedCause dated and filed 14th February 2014 (number not stated in judgment)· [2019] KEELRC 1145 (KLR)

Wycliffe Mwakha Murunga v Kenya Horticultural Exporters (1977) Limited [2019] KEELRC 1145 (KLR)

Employment and Labour Relations Court
5 July 2019
2,167 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled a worker's dismissal unfair because the employer had no records or evidence proving he absconded or stole, awarding him Kshs.123,891.

What this practically means

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Executive summary

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The claimant, employed by the respondent and earning a stated Kshs.12,462 monthly, claimed he was verbally dismissed on 15th June 2013 and sought declarations of unfair termination, terminal dues and compensatory damages totalling Kshs.336,474, plus costs and interest. The respondent denied the claim, asserting the claimant was a casual employee on successive three-month contracts who was caught by a security guard attempting to leave with 6 kg of farm produce on 12th June 2013, thereafter absconded duty and never gave the respondent an opportunity to investigate, issue a show cause letter or hear him. The respondent relied on authorities on burden of proof and constructive dismissal. The court held that the respondent failed to discharge its evidential burden: it produced no Occurrence Book, no contact records, made no police report and never reported the alleged abscondment to the Labour Officer. It had not proved the claimant absconded or was found with unauthorised produce, nor disproved the claimant's account of verbal dismissal followed by an inordinately long wait at reception. Even if the claimant had worked intermittently, his terms would have converted to monthly contracts under Section 37(1)(b), and the last three-month contract had not expired. Relying on Section 45, the court found the termination unfair. On remedies it awarded 6 months' salary as compensation, one month's pay in lieu of notice, 112 days' leave pay for 5 years 4 months, and salary up to 15th June 2013 only, totalling Kshs.123,891, with costs to the claimant and interest at court rates from the date of judgment. The claim succeeded in part, as post-15th June 2013 salary was refused.

Key legal issues

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01

Whether the claimant was unfairly terminated

Holding

The termination was unfair because the respondent failed to prove the claimant absconded duty or was caught with farm produce, and failed to disprove the claimant's account of verbal dismissal.

Reasoning

The respondent bore the burden under Sections 43, 45 and 47(5) of the Employment Act. It produced no Occurrence Book, no contact records, made no police report and never issued a show cause letter or invited the claimant to a hearing. The court found the respondent had not proved abscondment or the alleged theft, nor disproved the claimant's averment that he was verbally dismissed and then kept waiting inordinately at reception. Procedural fairness was also not demonstrated.

p. 3
02

Whether the claimant was constructively dismissed

Holding

The claimant pleaded and testified to verbal dismissal, not constructive dismissal; the court found verbal dismissal without notice or justification.

Reasoning

The respondent framed its defence around constructive dismissal, but the court noted the claimant's case was verbal dismissal. The court accepted the claimant's version under Section 10(6) and (7) of the Employment Act since the respondent failed to controvert his averments, and found he was verbally dismissed by RW1 without notice or justification.

p. 3
03

Status of the claimant's employment (casual vs contractual)

Holding

Even if the claimant worked intermittently, his employment would have converted to monthly contracts under Section 37(1)(b); the respondent admitted issuing three months' contracts, the last unexpired.

Reasoning

The respondent alleged the claimant was a casual employee working intermittently, but produced no evidence to support this. The court held that prolonged intermittent service would convert to monthly contracts by virtue of Section 37(1)(b) of the Employment Act, and in any event the respondent admitted three-month contracts, the last expiring 17th June 2013, so the claimant was in employment when dismissed.

p. 3
04

Quantum of remedies

Holding

Claimant awarded 6 months' compensation, one month's pay in lieu of notice, 112 days' leave pay for 5 years 4 months, and salary up to 15th June 2013 only.

Reasoning

Compensation was set at 6 months taking into account length of service and other relevant factors. Leave was awarded for the full period because the respondent adduced no evidence on leave. Salary was awarded only up to 15th June 2013 as no services were rendered afterwards. Reliance was placed on the claimant's uncontroverted averments under Section 10(6) and (7).

p. 4

Legal principles established

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  • An employer must keep employment records including contact addresses and termination dates; failure to produce them and mere denial of the employee's averments weighs against the employer.
  • Where the employer fails to prove either the reason for termination or procedural fairness, the termination is unfair under Section 45 of the Employment Act.
  • An employer need not wait for the employee to be physically present to issue a show cause letter or invite a hearing, provided it keeps proper contact records.

Court orders

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  1. 1.Award of compensation of Kshs.66,372 (6 months' salary)
  2. 2.Award of pay in lieu of notice of Kshs.11,062
  3. 3.Award of pay in lieu of leave of Kshs.40,226 being 112 days' leave for 5 years 4 months
  4. 4.Award of salary up to 15th June 2013 of Kshs.6,231
  5. 5.Total award of Kshs.123,891
  6. 6.Respondent to pay claimant's costs of the suit
  7. 7.Decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Employment ActSection 10 (including 10(6) and (7))
  • Employment ActSection 37(1)(b)
  • Employment ActSection 43(1)
  • Employment ActSection 44
  • Employment ActSection 45
  • Employment ActSection 47(5)
  • Employment ActSection 74

Cases cited (7)

  • Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Workers –V- Mombasa Sports Club
    Cause No. 440 of 2013
  • Donald Odeke V Fidelity Security Ltd
    Cause No. 1998 of 2011
  • Kennedy Maina Mirera –V- Barclays Bank of Kenya Limited
    (2018) eKLR
  • Lear Shighadi Sinoya –V- Avtech Systems Limited
    [2017] eKLR
  • Simon Ngugi Kamau –V- Silpack Industries Limited
    (2015) eKLR
  • Maria Kagai Ligaga -V- Coca Cola East and Central Africa Limited
    Cause No. 611(N) of 2009
  • Marete -V- Attorney General
    (1987) KLR 690
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and terminal benefits claims under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Wycliffe Mwakha Murunga v Kenya Horticultural Exporters (1977) Limited [2019] KEELRC 1145 (KLR)", Case Analysis (2019). Cause dated and filed 14th February 2014 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1145/eng@2019-07-05

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