Umbertoh Daniel Nungari v Wildebeest Camp & Travels Limited [2019] KEELRC 1563 (KLR)
The bottom line
#A Kenyan court awarded a dismissed worker Kshs 780,000 because his employer labelled him a consultant but treated him as an employee and fired him without a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee or an independent consultant
The Claimant was an employee of the Respondent, not a consultant.
The appointment letter of 8/8/2007 showed the Claimant held the post of Travel Consultant at employment, received a monthly salary, had an assigned place of work and was directed on the work to perform. The control test from Black's Law Dictionary definitions of employer-employee relationship applied. The Respondent conceded it had no consultancy agreement with the Claimant, undermining its assertion that he was an independent consultant.
Whether the Respondent had valid reasons to terminate and followed due process
The Respondent had no valid reasons and did not follow due process; the termination was unfair and unjustified.
The termination letter cited poor performance, but no warnings or cautions were proved to have been served; the alleged warning letter dated 28/10/2013 was denied and its service was never proved. Section 41 required the employer to explain the reasons and hear the employee's representations before termination on poor performance. The Claimant was condemned unheard, and under Sections 43 and 45(2) the employer failed to prove valid and fair reasons and fair procedure.
Remedies for unfair termination
One month's salary in lieu of notice and 12 months' salary as damages for unfair dismissal awarded; service pay denied.
The Claimant was terminated without any hearing and without notice, warranting notice pay and the maximum statutory compensation under Section 49. Service pay was denied because the Claimant was a member of NSSF. Tax and PAYE issues were referred to KRA. Costs and interest were awarded to the Claimant.
Legal principles established
#- An employment relationship is determined by whether a person serves and is under the control of the employer, including a defined place of work, a salary and direction on the work to be performed.
- Under Section 43 of the Employment Act, the employer bears the burden of proving the reasons for termination, and failure to do so renders the termination unfair.
- Termination on grounds of poor performance without warning, explanation and an opportunity to be heard violates Section 41 of the Employment Act and renders the dismissal unfair under Section 45(2).
Court orders
#- 1.Payment of 1 month's salary in lieu of notice of Kshs. 60,000/=.
- 2.12 months' salary as damages for unfair dismissal of Kshs. 720,000/= (60,000 x 12), total Kshs. 780,000/= less statutory deductions.
- 3.Prayer for service pay denied as the Claimant was a member of NSSF.
- 4.The Claimant to pursue the issue of Income Tax and Payee with the Kenya Revenue Authority (KRA) as appropriate.
- 5.The Respondent to pay costs of the case plus interest at Court rates with effect from the date of judgment.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Articles 41 and 47 of the Constitution invoked in the claim)
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.
- Mwadzoya v United States International University – Africa & another[2026] KEELRC 2559 (KLR)23 Sept 2026
Cite this brief
#Cite this brief
Caselaw, "Umbertoh Daniel Nungari v Wildebeest Camp & Travels Limited [2019] KEELRC 1563 (KLR)", Case Analysis (2019). Cause No. 696 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1563/eng@2019-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.