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ELRCPartially AllowedCause No 1150 of 2015· [2019] KEELRC 2296 (KLR)

Paul Mumo Kitavi v Acme Containers Limited [2019] KEELRC 2296 (KLR)

Employment and Labour Relations Court
15 February 2019
MOMaureen Onyango
2,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fires a worker for suing over a workplace injury must pay compensation, notice, overtime, leave dues, costs and interest.

What this practically means

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Executive summary

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The Claimant, a machine operator employed around 2010 at a monthly salary of Kshs.12,800, alleged wrongful and unlawful termination on 3rd March 2015 without notice or hearing, and sought terminal benefits of Kshs.409,000, a detailed Certificate of Service, costs and general damages. He contended the termination was reprisal for filing a work-injury suit (CMCC No. 46 of 2015). The Respondent denied the claim, alleging the Claimant absconded duty and failed to execute a fresh contract, and urged dismissal with costs. The court framed two issues: whether the termination was valid procedurally and substantively, and entitlement to reliefs. Applying Section 47(5) of the Employment Act, the court found the Respondent failed to justify the termination: no Notice to Show Cause, no hearing, and clocking machine records it admitted existed were not produced, shifting the burden under Section 10(7). The court inferred the real reason was service of summons in the injury suit, a ground protected by Section 46 of the Employment Act and Section 8 of the Occupational Safety and Health Act. The termination was held unfair. The court awarded one month's notice pay (Kshs.12,800), maximum compensation for unfair termination (Kshs.129,600), overtime (Kshs.64,000), unpaid annual leave of 105 days (Kshs.51,692.30) and a Certificate of Service. Service pay was refused due to NSSF membership. Costs were awarded to the Claimant with interest on the decretal sum from the date of judgment.

Key legal issues

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01

Whether the termination was procedurally and substantively fair

Holding

The termination was procedurally and substantively unfair; no hearing, no Notice to Show Cause, and the ground (filing an injury suit) is prohibited

Reasoning

The Respondent alleged abscondment but produced no clocking records, no Notice to Show Cause and showed no attempt to contact the Claimant. RW1 had no documentation of service pay or records of separation. The court inferred the real reason was service of summons in the injury suit, a ground protected by Section 46 of the Employment Act and Section 8 of the Occupational Safety and Health Act. Both substantive justification and fair procedure were therefore lacking.

p. 3
02

Whether the burden of proof shifted to the Respondent

Holding

Yes - the employer failed to produce employment records it admitted existed

Reasoning

The Respondent stated there were clocking machine records but did not produce them. RW1 admitted he had no employment records in court and no Notice to Show Cause. Under Section 10(7) of the Employment Act, failure to avail employment records shifts the burden to the employer, making the Claimant's account credible.

p. 3
03

Entitlement to terminal dues, overtime, leave and Certificate of Service

Holding

Claimant awarded one month notice pay, maximum compensation, overtime and unpaid leave, plus a Certificate of Service; service pay refused due to NSSF membership

Reasoning

Section 35 entitles the Claimant to one month's notice pay. Service pay is excluded by NSSF membership under Section 35(6)(d). Unrebutted evidence of overtime and non-taken leave supported awards of Kshs.64,000 and Kshs.51,692.30 respectively. Section 51 mandates issuance of a Certificate of Service.

p. 4

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness
  • Burden of proving unfair termination rests on the employee, while the burden of justifying the grounds rests on the employer (Section 47(5), Employment Act)
  • Burden of proof shifts to the employer where he fails to avail employment records (Section 10(7), Employment Act)
  • An employer may not dismiss or disadvantage an employee for making a complaint about safety or injury

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs.12,800
  2. 2.Compensation for unfair termination (maximum) of Kshs.129,600
  3. 3.Overtime of Kshs.64,000 (12 months at 8 hours per day at 1.5 rate per hour)
  4. 4.Unpaid annual leave at 21 days per annum for 5 years being 105 days, translating to Kshs.51,692.30
  5. 5.Respondent to issue the Claimant with a Certificate of Service under Section 51 of the Employment Act, 2007
  6. 6.Respondent to pay the Claimant's costs; decretal sum to attract interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 46(h)
  • Employment Act, 2007Section 35
  • Employment Act, 2007Section 35(6)(d)
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 28
  • Employment Act, 2007Section 51
  • Occupational Safety and Health ActSection 8(1)

Cases cited (5)

  • Alphonce Maghanga Mwachanya Versus Operation 680 Limited
    HCCC 146 of 2012 (Mombasa)
  • Andrew Ogola Makomene Versus Agro Industries Tools Limited
    (2017) eKLR
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • Francis Mbugua Boro –Vs- Smartchip Dynamics Ltd
    (2017) eKLR
  • David Njoroge Muiru -Vs- Elsa Limited
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Paul Mumo Kitavi v Acme Containers Limited [2019] KEELRC 2296 (KLR)", Case Analysis (2019). Cause No 1150 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2296/eng@2019-02-15

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