Eliud Kinyua Tiribu v Mastermind Tobacco Limited [2019] KEELRC 2330 (KLR)
The bottom line
#A Kenyan court ruled a worker's real employer was Mastermind Tobacco despite a contract naming another company, and his phone dismissal was unfair.
What this practically means
#Executive summary
#Key legal issues
#Existence of employment relationship
The Respondent was the Claimant's legal employer notwithstanding the contract produced with NGM Co. Ltd
The Respondent denied employment and produced a contract with a sister company, NGM Co. Ltd, whose forensic examination was never done. Its witness admitted the Claimant's supervisors were its own department's personnel. The employer bears the duty to keep employment records, which it failed to produce, and section 2 of the Employment Act defines employer broadly. On these findings the Respondent was held legally to be the employer.
Unfair termination
The dismissal was unfair as the Claimant was neither informed of allegations nor heard
The Claimant testified he was dismissed by telephone after suing the Respondent for workplace injuries, without being told the allegations or given a hearing. The Respondent's defence denied the employment relationship altogether, leaving that testimony uncontroverted. Sections 35 and 41 of the Employment Act, 2007 require notice and a fair hearing before termination, and their breach rendered the dismissal unfair.
Remedies
One month's salary in lieu of notice and 7 months' gross wages as compensation awarded; leave and lost income claims declined
Notice pay was computed on the pleaded monthly salary of Kshs 11,400/-. Compensation was set at 7 months' gross wages reflecting about 7 years of service. The leave claim fell within the section 28(4) bar limiting such claims, and loss of income was not proved, so both heads were refused.
Legal principles established
#- The obligation to keep and produce employment records, coupled with the statutory definition of employer, can fix the employment relationship on a party notwithstanding a contract with a sister company
- Where a respondent fails to controvert the claimant's testimony, termination without notice of allegations or a hearing breaches sections 35 and 41 of the Employment Act
Court orders
#- 1.Salary in lieu of notice of Kshs 11,400/-
- 2.Compensation of Kshs 79,800/- (7 months gross wages), totalling Kshs 91,200/-
- 3.Costs of the suit to the Claimant on half scale
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Kinyua Tiribu v Mastermind Tobacco Limited [2019] KEELRC 2330 (KLR)", Case Analysis (2019). Cause No 707 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2330/eng@2019-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.