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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 1818 (KLR)

Kennedy Ochieng’ Ochuka v Wilham Kenya Limited [2019] KEELRC 1818 (KLR)

Employment and Labour Relations Court
5 April 2019
1,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee dismissed without notice or a hearing won over Kshs. 109,135 after the court ruled his 'casual' status did not strip him of legal protections.

What this practically means

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Executive summary

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This was an undefended employment claim heard during service week at Nairobi after the respondent, though served through its advocates Nyachoti and Company, failed to attend the hearing; an affidavit of service was filed on 16/4/2018. The claimant testified that he was employed in November 2006 as a packer in the export department at Kshs. 265 per day, paid fortnightly via ATM card, working six to seven days a week without annual leave, housing or rest days. On 10th August 2011 he was sent home without notice, without a notice to show cause or disciplinary hearing, and without terminal benefits or a certificate of service, after five years of continuous service. The court held that even in an undefended suit the claimant bore the burden of proof on a balance of probabilities, but found the uncontroverted testimony proved summary dismissal without valid reason or fair procedure in breach of Sections 41, 43 and 45 of the Employment Act, 2007, and that the claimant, though treated as a casual, was a protected employee under Section 37. The court awarded one month's notice pay (Kshs. 9,490), leave pay for three years (Kshs. 28,470, the balance being caught by laches), service gratuity of 15 days' salary per year (Kshs. 23,725, no NSSF dues having been paid), and five months' salary as compensation (Kshs. 47,450), plus a certificate of service within 30 days, interest and costs. Claims for salary from August 2011 to January 2012, public holiday pay and rest-day pay were dismissed as unproved. Total award: Kshs. 109,135.

Key legal issues

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01

Whether termination was lawful and fair

Holding

Summary dismissal without notice, show-cause or hearing was unlawful and unfair

Reasoning

The claimant's uncontroverted testimony showed he was sent home on 10th August 2011 upon reporting to work, without notice, notice to show cause or disciplinary hearing, and without being charged with misconduct. Section 41 requires procedure and Sections 43 and 45 require valid reason; their breach rendered the dismissal unlawful and unfair, attracting compensation under Section 49(1)(c) and (4).

p. 2
02

Whether the claimant was a casual or protected employee

Holding

He was a protected employee under Section 37 despite being treated as a casual

Reasoning

The respondent asserted he was a casual paid weekly, but the claimant worked continuously for five years, six to seven days a week. Section 37 of the Employment Act converts such continuous service into protected employment, entitling him to leave, service pay where no NSSF dues were paid, and overtime/public holiday pay if worked.

p. 2
03

Entitlement to service gratuity

Holding

Entitled to service pay at 15 days' salary per completed year since no NSSF dues were paid

Reasoning

Service pay accrues on termination. Because the respondent treated the claimant as a casual and did not register him with NSSF, he qualified for gratuity calculated at 15 days' salary for each completed year of service under Section 35 of the Employment Act, assessed at Kshs. 23,725.

p. 2
04

Quantum of compensation for unfair dismissal

Holding

Five months' salary (Kshs. 47,450) awarded with aggravating circumstances

Reasoning

Under Section 49 the court considered the five years of service, lack of contribution to the job loss, denial of terminal benefits, and the aggravating circumstance that the claimant was unlawfully treated as a casual and denied workplace rights throughout, citing similar Kisumu ELRC causes in awarding five months' salary.

p. 3

Legal principles established

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  • Even in an undefended suit, the claimant bears the onus of proving the case on a balance of probabilities
  • Summary dismissal without notice, notice to show cause or disciplinary hearing is unlawful and unfair under Sections 41, 43 and 45 of the Employment Act
  • An employee treated as a casual but engaged continuously is a protected employee entitled to leave, service pay and overtime benefits

Court orders

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  1. 1.Kshs. 9,490 notice pay
  2. 2.Kshs. 28,470 in lieu of leave
  3. 3.Kshs. 23,725 service gratuity
  4. 4.Kshs. 47,450 compensation for unlawful and unfair dismissal
  5. 5.Provision of certificate of service within 30 days
  6. 6.Total award Kshs. 109,135
  7. 7.Interest at court rates from date of filing suit on notice pay, leave and gratuity, and from date of judgment on compensation, till payment in full
  8. 8.Costs of the suit to the claimant

Authorities

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Legislation

  • Evidence ActSections 107 and 108
  • Employment Act, 2007Sections 35, 37, 41, 43, 45, 49(1)(c) and (4)

Cases cited (2)

  • Jos Madede –vrs-Acacia Ventures ltd
    Kisumu ELRC Cause No.20 of 2018
  • Richard Okoth Ochieng –vrs- HS Amin & Co.Ltd
    Kisumu ELRC Cause No.98 of 2016
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kennedy Ochieng’ Ochuka v Wilham Kenya Limited [2019] KEELRC 1818 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1818/eng@2019-04-05

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