Wycliffe Mwakha Murunga v Kenya Horticultural Exporters (1977) Limited [2019] KEELRC 1145 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant was unfairly terminated
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.
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.
Whether the claimant was constructively dismissed
The claimant pleaded and testified to verbal dismissal, not constructive dismissal; the court found verbal dismissal without notice or justification.
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.
Status of the claimant's employment (casual vs contractual)
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.
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.
Quantum of remedies
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.
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).
Legal principles established
#- 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
#- 1.Award of compensation of Kshs.66,372 (6 months' salary)
- 2.Award of pay in lieu of notice of Kshs.11,062
- 3.Award of pay in lieu of leave of Kshs.40,226 being 112 days' leave for 5 years 4 months
- 4.Award of salary up to 15th June 2013 of Kshs.6,231
- 5.Total award of Kshs.123,891
- 6.Respondent to pay claimant's costs of the suit
- 7.Decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and terminal benefits claims under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omondi & 2 others v Hatari Security Guards Limited (Cause 2424 of 2017) [2022] KEELRC 1313 (KLR)[2022] KEELRC 1313 (KLR)14 Jul 2022
Cite this brief
#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.