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ELRCPartially AllowedCause No. 486 of 2014 (as filed 7th March 2014)· [2019] KEELRC 1761 (KLR)

John Kamwere Mwangi v Registered Trustees of Nairobi Gymkhana Sports Club [2019] KEELRC 1761 (KLR)

Employment and Labour Relations Court
2 April 2019
HWHellen Wasilwa
3,778 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Muthaiga Country Club to pay a longtime waiter KShs 784,914 after failing to prove he was on contract when it ended his job.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent in 1996 as a waiter, claimed that his employment was unlawfully and unfairly terminated on 31st August 2013 without notice, hearing or payment of terminal dues, and sought terminal dues of KShs. 1,531,727.00, a certificate of service, costs and interest. The Respondent asserted that the Claimant resigned in 2007, was paid his dues, and was thereafter engaged on yearly contracts, the last of which lapsed on 31st August 2013 without any obligation to renew. The matter had a chequered procedural history: an ex parte judgment in 2015 was set aside on conditions, the Claimant's case was dismissed for non-attendance in 2018 and reinstated, before a full hearing on 21st January 2019. The court found that the Respondent, as employer, had a statutory duty under Sections 9 and 10(7) of the Employment Act to issue and prove written terms of employment, and having failed to produce signed appointment letters or contracts, could not establish that the Claimant was a contract employee. The Respondent's assertion that the Claimant resigned in 2007 was contradicted by its own conduct in terminating his services in 2013. Applying Section 45(2) of the Employment Act, the court held the termination lacked a valid reason and due process, and was therefore unfair. Relying on Clause 19 of the 2013 Collective Bargaining Agreement with the Kenya Hotels and Allied Workers Union, the court awarded notice pay of KShs. 151,635, gratuity of KShs. 446,817, long service award of KShs. 4,500 and six months' compensation of KShs. 181,962, totalling KShs. 784,914, together with a certificate of service and costs. Claims for underpayment, house allowance, leave, leave travelling allowance and 12 months' compensation were not granted.

Key legal issues

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01

Nature of the employment relationship (permanent vs contract)

Holding

The Respondent failed to prove the Claimant was on contract from 2008 to 2013; absent appointment letters or contracts, the Claimant's assertion that he was not on contract prevails

Reasoning

The employer did not issue an appointment letter in 1996; the alleged 2006 letter was unsigned and denied, as were the contracts. Under Sections 9 and 10(7) of the Employment Act the employer must prove particulars of employment where no written contract is produced, which it failed to do.

p. 5
02

Fairness of termination

Holding

The termination was unfair - no valid reason was cited and no due process was followed

Reasoning

The Respondent asserted the contract lapsed but no contract existed; the Respondent's reply to the union that the Claimant had terminated employment in 2007 was untruthful given the 2013 termination letter. No notice to show cause, hearing or valid reason was demonstrated, contrary to Section 45(2) and the CBA.

p. 5
03

Remedies under the CBA

Holding

Claimant entitled to 5 months' notice pay, 26 days' gratuity per completed year, long service award and 6 months' compensation per the CBA and Employment Act

Reasoning

The 2013 CBA covered the Claimant's services; Clause 19 required 5 months' notice or pay in lieu for employees with over 10 years' service and gratuity of 26 days per completed year. Compensation was limited to 6 months' salary.

p. 5

Legal principles established

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  • Where an employer fails to produce a written contract of service, it bears the burden of proving the particulars of the employment relationship under Section 10(7) of the Employment Act
  • A termination without a valid reason and without due process is unfair under Section 45(2) of the Employment Act

Court orders

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  1. 1.5 months salary in lieu of notice of KShs. 151,635
  2. 2.Gratuity equivalent to 26 days for 17 years worked of KShs. 446,817
  3. 3.Long service award as per the Collective Bargaining Agreement of KShs. 4,500
  4. 4.6 months salary as compensation for unlawful termination of KShs. 181,962 (total award KShs. 784,914)
  5. 5.The Claimant to be issued with a Certificate of Service
  6. 6.The Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment ActSection 9(1)(2)
  • Employment ActSection 10(7)
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 35(5)
  • Employment Act 2007Section 35(6)(d)

Cases cited (2)

  • East African Portland Cement Company Limited vs. Kenya Chemical & Allied Workers Union
    [2017] eKLR
  • Morgan Air Cargo Limited vs. Enrest Enterprises Limited
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (jurisdiction over employment and labour relations disputes)

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, "John Kamwere Mwangi v Registered Trustees of Nairobi Gymkhana Sports Club [2019] KEELRC 1761 (KLR)", Case Analysis (2019). Cause No. 486 of 2014 (as filed 7th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1761/eng@2019-04-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.