Antony Karanja Wainaina v Adrian Company Limited [2019] KEELRC 2089 (KLR)
The bottom line
#A Kenyan employer without a written contract lost a Kshs.2.8 million unfair termination claim because the court accepted the employee's own account of the job terms.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship
The claimant proved on a preponderance of evidence that he was employed under a contract of service; the job card was a confirmation of employee status and the email of 14th May 2013 incorporated him into the company's establishment.
The respondent admitted issuing the claimant a job card but did not produce the genuine card she claimed to have issued, so the court accepted the claimant's card as genuine. The respondent's Project Manager's email introduced the claimant as champion of repeater and indoor solutions involved in all related projects, without referring to him as a consultant. The respondent also failed to prove which projects were completed or unpaid. The court distinguished Maurice Oduor Okech because there the contract-for-services case was supported by local purchase orders and job contracts.
Terms of the oral contract of service
Having failed to reduce the contract to writing under section 9(2) and to produce written particulars under section 10(7) of the Employment Act, the respondent is taken to have employed the claimant on the terms alleged in his pleadings and testimony.
The court held that the statutory duty to reduce a contract of service into writing and to produce the written particulars in legal proceedings places the evidential burden on the employer. As the respondent produced no written contract to disprove the salary and allowances claimed, the terms alleged by the claimant (Kshs.500,000 monthly salary plus fuel and telephone allowances) were accepted as the contractual terms.
Unfair termination
The termination was in contravention of sections 41, 43 and 45 of the Employment Act and therefore unfair.
Having found an employment relationship, the respondent was bound to comply with the Employment Act. The claimant was neither informed of the reason for termination nor afforded a fair hearing before termination; no notice was issued. Under sections 45(2) and 41 the employer bears the burden of proving valid and fair reasons and fair procedure, including explanation of reasons in the employee's presence with a companion and consideration of representations. The respondent discharged none of these obligations.
Legal principles established
#- Where an employer fails to produce the written contract or written particulars required under sections 9(2) and 10 of the Employment Act, the burden of proving or disproving the terms of employment alleged verbally rests on the employer.
- Termination is unfair where the employer fails to prove a valid and fair reason and that a fair procedure was followed.
Court orders
#- 1.Declaration that the Respondent breached the employment agreement it entered with the claimant
- 2.Declaration that the Respondent unfairly and unjustifiably terminated the Claimant's employment
- 3.Award of Kshs.500,000 being one month's salary in lieu of notice
- 4.Award of Kshs.500,000 being one month's salary as compensation for unfair termination
- 5.Award of Kshs.1,800,000 salary arrears and Kshs.10,000 telephone allowances arrears, total Kshs.2,810,000, subject to statutory deductions
- 6.Dismissal of the claim for mileage/transport allowance
- 7.Dismissal of the claim for general damages for frustration of the employment contract
- 8.Issuance of a Certificate of Service to the claimant
- 9.Costs of the suit to the claimant plus interest at court rates from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okaka v Tulsi Construction Ltd[2026] KEELRC 2758 (KLR)5 Oct 2026
- Ndome v Welfast (K) Limited (Cause 359 of 2017) [2023] KEELRC 373 (KLR)[2023] KEELRC 373 (KLR)13 Feb 2023
- Irungu v Primefuels Kenya Limited (Cause 657 of 2016) [2022] KEELRC 44 (KLR)[2022] KEELRC 44 (KLR)26 Apr 2022
Cite this brief
#Cite this brief
Caselaw, "Antony Karanja Wainaina v Adrian Company Limited [2019] KEELRC 2089 (KLR)", Case Analysis (2019). Cause No 1390 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2089/eng@2019-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.