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ELRCPartially AllowedCause No. 490 of 2017 (with 9 consolidated causes, 10 files in total)· [2019] KEELRC 1276 (KLR)

Bonaya Kambicha Abdala & 9 others v Jiangxi Zhongmei Engineering Construction Co. Ltd [2019] KEELRC 1276 (KLR)

Employment and Labour Relations Court
4 July 2019
NMNzioki wa Makau
1,589 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Ten consolidated undefended causes were brought by claimants employed in various capacities on the construction of the Marsabit–Turbi Road, alleging wrongful, unprocedural and unfair dismissal contrary to Sections 41 and 45 of the Employment Act, and claiming notice pay, gratuity, 12 months' compensation for unfair termination, underpayment of wages, annual leave, house allowance and pay for Sundays worked. Despite leave to file a defence out of time, the suit proceeded undefended and the claimants' affidavit evidence remained uncontroverted. The court framed two issues: whether the termination was wrongful, unprocedural, unjustifiable and/or unlawful, and whether the claimants were entitled to the remedies sought. On the first, the court held that the employer bore the burden under Sections 43 and 45 of the Employment Act to prove valid reasons and fair procedure; no notice, no reasons and no hearing were shown, so the termination was unfair - fairness requires both substantive justification and procedural fairness. On remedies, the court found that although the claimants asserted underpayment, they produced no payment slips or bank statements; the claimant in Cause No. 490 of 2017 earned Kshs. 10,608/- monthly, exceeding the statutory minimum of Kshs. 5,218/- for 'all other areas' under Legal Notice No. 197 of 2013, so the claims for underpayment, Sunday pay and house allowance, being catered for in the monthly wages, failed. The court awarded each claimant one month's salary in lieu of notice and two months' salary as compensation, with costs of Kshs. 20,000/- on each of the 10 files, totalling Kshs. 200,000/-.

Key legal issues

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01

Whether the termination was wrongful, unprocedural and unlawful

Holding

Yes - the termination was unfair because the Respondent did not inform the claimants of the reason for termination, gave no notice, and accorded them no hearing, failing Sections 41, 43 and 45 of the Employment Act.

Reasoning

The suit was undefended and the claimants' evidence uncontroverted. Section 43 places the burden on the employer to prove reasons for termination, failing which termination is unfair under Section 45. No notice to show cause, no hearing and no notification of reasons was shown. Substantive justification and procedural fairness were both absent, so the termination was unfair and remedies follow.

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02

Whether the claimants are entitled to the remedies sought

Holding

Partially - notice pay and two months' compensation awarded; claims for underpayment, Sundays underpayment and house allowance failed.

Reasoning

The claimants produced no payment slips or bank statements to prove underpayment. The claimant in Cause No. 490 of 2017 was paid Kshs. 10,608/- monthly, exceeding the statutory basic minimum of Kshs. 5,218/- under Legal Notice No. 197 of 2013 for 'all other areas'. Being paid above the statutory minimum, the claims for underpayment, Sundays underpayment and house allowance, having been catered for in monthly payments, all failed.

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Legal principles established

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  • For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness.
  • Where the employer fails to prove the reason for termination, the termination is deemed unfair under Sections 43 and 45 of the Employment Act.
  • An employer who pays above the statutory minimum wage cannot be liable for underpayment or separate house allowance claims where such dues are catered for in the monthly pay.

Court orders

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  1. 1.One month's salary in lieu of notice to each claimant
  2. 2.Two months' salary as compensation for unfair termination to each claimant
  3. 3.Costs of Kshs. 20,000/- on each of the 10 files, totalling Kshs. 200,000/-

Authorities

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Legislation

  • Employment ActSections 27(3), 31, 35, 36, 41, 43, 44, 45, 46
  • Labour Institutions Act2007
  • Legal Notice No. 197 of 2013basic minimum wages
  • Labour Institutions (Building and Construction Industry) Wages OrderRegulation 3 (2012)

Cases cited (3)

  • Cleaver Hume Ltd v British Tutorial College Ltd
    [1975] EA 323
  • Regina Mwikali Wilson v Stephen M. Gichuhi & Another
    [2015] eKLR
  • Lake Flowers Ltd v Cila Francklyn Onyango Ngonga & Another
    [2008] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 and the Labour Institutions Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bonaya Kambicha Abdala & 9 others v Jiangxi Zhongmei Engineering Construction Co. Ltd [2019] KEELRC 1276 (KLR)", Case Analysis (2019). Cause No. 490 of 2017 (with 9 consolidated causes, 10 files in total). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1276/eng@2019-07-04

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