Everline Kerubo v Patience Rehema John and Venceslas Chilumo t/a Power Base Bar & Restaurant (Cause 23 of 2018) [2019] KEELRC 1282 (KLR)
The bottom line
#A Malindi employer who fired a worker without proving misconduct in court was ordered to pay her Kshs. 179,236 for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Existence of employment relationship
Employment relationship existed from 2014 between the Claimant and the Respondent couple
The Respondent expressly conceded engaging the Claimant in November 2014 and admitted she signed stock sheets and vouchers, which is inconsistent with disowning employment. The court distinguished the authority relied on by the Respondent as totally inapplicable. Evidence established she worked for Venceslas and his wife at their Malindi bar and restaurant from the business changeover in 2014.
Fairness of termination
Termination was unfair - no valid reason proved
The Respondent alleged the Claimant assaulted a colleague and deserted with licences. However Akinyi, the key witness, disowned the witness statement attributed to her and denied fighting the Claimant. Kanyoe's evidence was speculative. Venceslas himself did not call the alleged assault victim. Without corroboration there was no proof of violence or desertion, so no valid reason justifying termination was shown.
Applicable salary rate for underpayment
Minimum wage of Kshs. 10,107 monthly for general workers in municipalities applied, yielding underpayment of Kshs. 5,107 monthly for 17 months
The Claimant claimed Kshs. 12,071 monthly but did not clarify which role that rate applied to. As a General Worker performing multiple roles, the court adopted the 2015 statutory minimum wage for Cleaners, Gardeners, General Workers in Municipalities and Town Councils as a workable average for the period 2014 to May 2016.
Counterclaim for missing stock
Counterclaim rejected in totality
Akinyi disowned her witness statement, undermining the allegation of a fight and theft. Venceslas was unclear on the nature of the loss, made a police report he did not pursue, and said he could absorb the loss. The counterclaim of Kshs. 18,695 was therefore discredited and rejected.
Legal principles established
#- An employer who engages a worker cannot disown the employment relationship where it concedes the engagement
- An employer bears the burden of proving valid reasons for termination; uncorroborated allegations of misconduct fail where the supporting witness disowns the statement
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay underpayment of salary at Kshs. 86,816
- 3.Respondent to pay one month salary in lieu of notice at Kshs. 10,107
- 4.Respondent to pay equivalent of 6 months' salary in compensation for unfair termination at Kshs. 60,642
- 5.Respondent to pay salary for May 2016 at Kshs. 10,107
- 6.Respondent to pay annual leave at Kshs. 11,564 (total Kshs. 179,236)
- 7.Certificate of Service to issue
- 8.No order on the costs and interest
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the ELRC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Everline Kerubo v Patience Rehema John and Venceslas Chilumo t/a Power Base Bar & Restaurant (Cause 23 of 2018) [2019] KEELRC 1282 (KLR)", Case Analysis (2019). Not stated in judgment (Claim filed 15th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1282/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.