Patrick Mutuku Kamami v Kenya Toner & Ink Suppliers Ltd [2019] KEELRC 1963 (KLR)

Employment and Labour Relations Court

22 March 2019

JRJames Rika

1,715 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~7 min to read original · ~4 min brief

The bottom line

Without a written contract, a Kenyan employer who disputes an employee's job terms loses the argument — and must still pay minimum wage arrears.

What this practically means

Executive summary

The Claimant, employed orally from 18th July 2005 (which the Court upheld as the date of employment), sued his former employer for notice pay, underpayment of salary under two legal notices, salary for 20 days worked in June 2016, 12 months' compensation for unfair termination, a certificate of service, costs and interest. The Respondent asserted the Claimant was a Messenger, was transferred from Mombasa to Nairobi after the Mombasa business collapsed, and deserted rather than report to Nairobi. The Court framed three issues: the Claimant's position, whether his contract was unfairly terminated, and whether he was paid the legal wage. It found that the Respondent failed to prove the designation of Messenger, there being no written contract as required by Section 10(2) of the Employment Act, and under Section 10(7) the employer bore the burden of proving disputed terms; the Claimant was therefore a Shop Attendant. On termination, the Court accepted that the Mombasa business had collapsed and the Claimant had been asked to report to Nairobi by June 2015 but did not do so; the contract was not terminated by the Respondent, so notice pay and compensation for unfair termination were groundless and declined. Salary for June 2016 and underpayment for May 2015 to May 2016 also failed since the Claimant was not in employment. However, underpayment under Legal Notice 197 of 2013 from November 2013 to April 2015 succeeded: computed at Kshs. 13,205 minimum wage plus 15% house allowance, the Claimant was underpaid Kshs. 3,085 monthly, totalling Kshs. 55,543. The Court ordered payment of Kshs. 55,543, a certificate of service, no order on costs, and interest at 14% per annum from the date of judgment.

Key legal issues

Claimant's designation - Shop Attendant or Messenger

Holding

The Court upheld the Claimant's position that he was a Shop Attendant, the Respondent having failed to prove otherwise in the absence of a written contract.

Reasoning

The Respondent did not issue a written contract as required by Section 10(2) of the Employment Act 2007. Under Section 10(7) the employer had to prove the disputed terms. There was no written contract designating the Claimant as a Messenger, and a receipt exhibited showed him as a Cashier. In small retail businesses employees discharge multiple related roles, so the Court concluded the Claimant was a Shop Attendant.

p. 2

Whether the contract was unfairly terminated by the Respondent

Holding

The Court found the contract was not terminated by the Respondent; the Claimant declined a transfer to Nairobi after the Mombasa business closed and thus the unfair termination claims failed.

Reasoning

The Respondent's Mombasa business was failing, with rent arrears and lease termination correspondence. On 15th October 2014 the Respondent notified the Claimant of the closure and asked him to report to Nairobi within 4 months. The Claimant did not report and allegedly set up a similar business in Mombasa. The Court had no reason to disbelieve the Respondent's evidence, so no termination occurred and the fairness safeguards of the Employment Act were not engaged.

p. 3

Underpayment of salary under legal notice number 197 of 2013

Holding

Underpayment for 1st November 2013 to 30th April 2015 was granted at Kshs. 55,543, computed from the minimum wage for Shop Assistants of Kshs. 13,205 plus 15% house allowance.

Reasoning

The Claimant earned Kshs. 12,100 monthly against a legal minimum of Kshs. 13,205 excluding housing. Adding 15% house allowance gave a consolidated wage of Kshs. 15,185. The monthly shortfall of Kshs. 3,085 over the 18 months claimed totalled Kshs. 55,543. Desertion did not defeat the claim, but the figures quoted by the Claimant did not match the legal notice, so the Court used the statutory figures.

p. 3

Legal principles established

Where terms of an oral contract of employment are disputed, the employer bears the burden of proving its position or disproving the employee's position.
Underpayment of statutory minimum salary is not excused by an employee's alleged desertion.
Where there is no written contract designating the employee's role, the employee's account of his designation prevails where the employer fails to prove otherwise.

Court orders

1.The Respondent shall pay to the Claimant arrears of underpaid salary at Kshs. 55,543.
2.Certificate of Service to issue.
3.No order on the costs.
4.Interest allowed at 14% per annum from the date of Judgment till payment is made in full.

Authorities

Legislation

Employment Act 2007Section 10(2)
Employment Act 2007Section 10(7)
Legal Notice Number 197 of 2013 (Wages Order)Minimum wage for Shop Assistants
Legal Notice Number 117 of 2015Underpayment claim basis (not applied - Claimant not in employment)

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (employment dispute)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Patrick Mutuku Kamami v Kenya Toner & Ink Suppliers Ltd [2019] KEELRC 1963 (KLR)", Case Analysis (2019). Cause No 841 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1963/eng@2019-03-22

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