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ELRCPartially AllowedNot stated in judgment (Claim filed 15th July 2016)· [2019] KEELRC 1282 (KLR)

Everline Kerubo v Patience Rehema John and Venceslas Chilumo t/a Power Base Bar & Restaurant (Cause 23 of 2018) [2019] KEELRC 1282 (KLR)

Employment and Labour Relations Court
28 June 2019
1,621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant sued the Respondent, a bar and restaurant in Malindi owned by Patience and Venceslas, claiming she was employed from 2011 as a General Worker at Kshs. 5,000 monthly and terminated without notice on 28th May 2016. She sought May 2016 salary, one month's notice, leave pay, 12 months' compensation for unfair termination, underpayment, and a certificate of service, totalling Kshs. 391,024. The Respondent denied an employment relationship, asserting she was a cleaner engaged in November 2014 at Kshs. 450 daily for three days a week, alleged she assaulted a colleague and deserted with business licences, and counterclaimed Kshs. 18,695 for missing wines and spirits plus production of stock lists and vouchers. The court found an employment relationship existed from 2014, the Respondent having conceded the engagement and admitted the Claimant signed stock sheets and vouchers; the authority relied on by the Respondent was distinguished as inapplicable. The court accepted she performed multiple roles. The key witness to the alleged assault, Akinyi, disowned her witness statement, so no valid reason for termination was established. The court applied the 2015 minimum wage of Kshs. 10,107 for general workers and awarded underpayment for 17 months, notice, six months' compensation, May 2016 salary and leave pay, totalling Kshs. 179,236. The counterclaim was rejected in its entirety. A certificate of Service was ordered to issue, with no order on costs and interest.

Key legal issues

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01

Existence of employment relationship

Holding

Employment relationship existed from 2014 between the Claimant and the Respondent couple

Reasoning

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.

p. 2
02

Fairness of termination

Holding

Termination was unfair - no valid reason proved

Reasoning

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.

p. 2
03

Applicable salary rate for underpayment

Holding

Minimum wage of Kshs. 10,107 monthly for general workers in municipalities applied, yielding underpayment of Kshs. 5,107 monthly for 17 months

Reasoning

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.

p. 2
04

Counterclaim for missing stock

Holding

Counterclaim rejected in totality

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay underpayment of salary at Kshs. 86,816
  3. 3.Respondent to pay one month salary in lieu of notice at Kshs. 10,107
  4. 4.Respondent to pay equivalent of 6 months' salary in compensation for unfair termination at Kshs. 60,642
  5. 5.Respondent to pay salary for May 2016 at Kshs. 10,107
  6. 6.Respondent to pay annual leave at Kshs. 11,564 (total Kshs. 179,236)
  7. 7.Certificate of Service to issue
  8. 8.No order on the costs and interest

Authorities

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Legislation

  • Minimum wage applicable to Cleaners, Gardeners, General Workers, House Servants, Children’s Ayah, Sweepers, Day Watchmen and Messengers in 2015 (Wages Order)Municipalities and Town Councils rate - Kshs. 10,107 monthly

Cases cited (1)

  • Kahindi Kazungu Baya & Anor v. Boniface Silas Mukanga t/a New Galana Bar & Restaurant
    Cause Number 167 of 2016
Jurisdiction invoked
Employment and labour relations jurisdiction of the ELRC

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, "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.