Wilfred Wafula Khaemba v Shiva Carriers Limited [2019] KEELRC 1783 (KLR)
The bottom line
#Kenya's Employment Court in Mombasa ruled a truck driver was unfairly fired without a hearing, awarding him pay, costs and a service certificate.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant proved unlawful termination of employment
Yes - the Court found the termination unlawful and unfair; there was no valid reason and the Claimant was not afforded a hearing
The Claimant testified that he was arrested on allegations of stealing a truck and had no prior notice of any administrative charges and no opportunity to defend himself. The Respondent called no witness and instead claimed he was never its employee because he did not sign the offer of employment, yet offered no explanation as to how he came into contact with its truck. The Court preferred the Claimant's account.
Whether the Claimant was the Respondent's employee where he did not sign the offer of employment
Yes - the Respondent's denial of the employment relationship was rejected
The Respondent submitted that the Claimant was never its employee because he did not sign the offer of employment dated 5th August 2016. The Respondent called no witness and did not explain how the Claimant came to be in contact with its truck if he was not its employee. This failure fatally undermined the Respondent's defence and the Court believed the Claimant's account of employment and termination.
What remedies flow from the finding of unlawful termination
Three months' salary in compensation, one month's salary in lieu of notice, certificate of service, costs and interest
The Court exercised its discretion to award three months' salary in compensation rather than the twelve months sought, taking into account the Claimant's length of service and the Respondent's conduct in handling his case. It further awarded one month's salary in lieu of notice, interest at court rates from the date of judgment, a certificate of service and costs of the case.
Legal principles established
#- Where an employer fails to call any witness to countermand a claimant's testimony and offers no explanation of the circumstances, the court is entitled to believe the claimant's account of unlawful termination
- An employee found to have been unlawfully and unfairly terminated is entitled to compensation, notice pay, a certificate of service and costs
Court orders
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs. 113,709, comprising 3 months' salary in compensation (Kshs. 85,282) and 1 month's salary in lieu of notice (Kshs. 28,427)
- 2.The said amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Claimant is entitled to a certificate of service
- 4.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Memorandum of Claim for unlawful and unfair termination of employment); specific provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilfred Wafula Khaemba v Shiva Carriers Limited [2019] KEELRC 1783 (KLR)", Case Analysis (2019). Cause No 123 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1783/eng@2019-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.