Shem Basweti Nyamanche v Fish Processors (2000) Limited [2019] KEELRC 1723 (KLR)
The bottom line
#A Kenyan employer who fired a driver without telling him why or hearing him lost, paying over Kshs.157,000 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was unfair
The summary termination for absconding duty was unfair because the claimant was never notified of the dismissal or given an opportunity to be heard, and the respondent failed to prove the reasons for termination
The defence pleaded summary termination for absconding duty and dismissal following the criminal charge. Yet the respondent's own witness admitted in cross-examination that the claimant was never informed of the dismissal, never asked to explain his absence and never told to report back to work. Section 41 of the Employment Act requires notification of reasons and a hearing; Section 43 requires proof of reasons. Non-compliance rendered the termination unfair under Section 45.
Entitlement to unpaid salary for the period of trial
The claimant was awarded 12 months' salary arrears from 5th October 2008, the respondent having failed to controvert his evidence that he reported to work but was assigned no duties
The respondent did not controvert the claimant's testimony that he reported to work throughout his trial. Although the respondent filed bulky attendance records, it failed to extract and file the relevant entries as advised. Under Section 10(7) of the Employment Act the claimant's evidence therefore stood. The award was nonetheless limited to 12 months since the claimant admitted he was never assigned work.
Underpayments, house allowance and leave
The claimant, paid Kshs.8,000 per month, was below the statutory minimum wage; underpayments of Kshs.2,140.70 per month on the consolidated wage of Kshs.10,140.70 were awarded, which subsumed the house allowance claim; 29 days' leave was awarded for 2008 and shortfall days
The salary of Kshs.8,000 was below the statutory minimum consolidated wage of Kshs.10,140.70 for a driver of a medium sized vehicle, entitling the claimant to underpayments of Kshs.2,140.70 per month. Because the underpayments were reckoned on a consolidated wage including 15% house allowance, the separate house allowance claim was absorbed. Leave forms proved leave for 2004-2007 only, not 2008, and showed shortfalls of two days per year, justifying 29 days in total.
Legal principles established
#- An employer must inform an employee of the reasons for termination and give him an opportunity to defend himself, and must prove the reasons for termination
- Where an employer fails to keep or produce employment records, the court may accept the employee's uncontroverted evidence on the strength of Section 10(7) of the Employment Act
Court orders
#- 1.Declaration that the termination of the claimant's employment was unfair
- 2.Salary for 12 months based on minimum rate of pay for driver, medium sized vehicle - Kshs.121,688.40
- 3.Underpayments for 12 months only - Kshs.25,688.40
- 4.Leave for 29 days based on basic wage of Kshs.8,818 per month - Kshs.9,835.50
- 5.Total award of Kshs.157,212.30
- 6.Respondent to pay claimant's costs and interest to accrue at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; statement of claim as Cause No. 1289 of 2011)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shem Basweti Nyamanche v Fish Processors (2000) Limited [2019] KEELRC 1723 (KLR)", Case Analysis (2019). Cause No. 1289 of 2011 (formerly Nairobi, transferred to Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1723/eng@2019-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.