Salesa Guyo Boru & 9 others v Jianxi Zhongmei Engineering Construction Company Limited [2019] KEELRC 1469 (KLR)
The bottom line
#Ten road project workers won unfair dismissal compensation because their employer couldn't produce written contracts and payslips, but late claims for overtime and allowances failed.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissals were unfair and unlawful
Yes - the Respondent failed to prove a valid and fair reason for termination and each Claimant recovers 3 months' salary as compensation
The Respondent asserted that the Claimants held appointment letters and payslips but did not avail them. Section 9(1)(b) requires written contracts and Section 20 provides for itemized pay statements. Given the obligations under Section 74, and the evidential burden under Section 43, the Respondent failed to prove a fair or valid reason for termination, entitling each Claimant to compensation for unlawful dismissal.
Whether the claims for overtime, house allowance, public holidays and severance pay were proved
No - those heads failed, and the continuing-injury claims were also statute-barred under Section 90 of the Employment Act
The Claimants left employment in 2014 but filed suit in 2017, almost 3 years later. Overtime and house allowance claims are continuing wrongs under Section 90, actionable within 12 months of cessation of the breach. The court found the authorities relied upon by the Respondent on continuing injury instructive and declined to award these heads.
Whether costs should be awarded separately in each cause or only in the consolidated file
Each cause gets capped costs of Kshs. 15,000/- with consolidated costs of Kshs. 150,000/- and no further costs upon consolidation
The court noted the Claimants could have filed a single suit instead of 10 replicas, and capped costs accordingly, balancing the multiplicity of suits against the entitlement of each Claimant to costs. The Respondent's submission that costs be limited to the consolidated file alone was not fully adopted.
Legal principles established
#- Where the employer fails to avail written contracts and payslips as required by Sections 9, 20 and 74 of the Employment Act, it fails to discharge its burden under Section 43 to prove a valid and fair reason for termination
- Continuing injury or damage must be actioned within twelve months next after cessation thereof
Court orders
#- 1.Award of 3 months' salary compensation for unlawful dismissal to each of the 10 Claimants (Cause 231: Kshs. 56,160/-; 232: Kshs. 42,042/-; 233: Kshs. 38,376/-; 234: Kshs. 31,824/-; 235: Kshs. 31,824/-; 236: Kshs. 35,802/-; 237: Kshs. 40,326/-; 238: Kshs. 51,182/-; 239: Kshs. 42,042/-; 240: Kshs. 51,182/-)
- 2.Consolidated costs of Kshs. 150,000/-
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salesa Guyo Boru & 9 others v Jianxi Zhongmei Engineering Construction Company Limited [2019] KEELRC 1469 (KLR)", Case Analysis (2019). Cause No. 231 of 2017 (consolidated with Causes Nos. 232-240 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1469/eng@2019-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.