John Karanja Mbogo v Leah Wangui Mburu t/a Gilgil Distributors Limited [2020] KEELRC 612 (KLR)
The bottom line
#A Kenyan court confirmed a driver was an employee and won holiday and leave pay, but lost his termination claim because he absconded duty.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee of the respondent or an independent contractor paid on commission
The court found the claimant was an employee, based on control, monthly pay, payment of statutory dues, enjoyment of annual leave and subjection to disciplinary requirements
The claimant testified he remained under the respondent's control from 2003 to 2014, was paid monthly, enjoyed annual leave and his statutory dues were paid. The respondent confirmed statutory deductions and disciplinary processes applied. The respondent, which had records in its possession to disprove employment, failed to produce them, so the burden was not discharged. The distinguishing features of a contract for service were absent.
Whether the termination of employment was unfair
The claimant absconded duty; summary dismissal was justified, so no notice pay or compensation for unlawful termination was awarded
The claimant's last day was 28th February 2014 when he was asked to hand over vehicle keys. Warning letters dated 20th February, 7th March and 19th March 2014 for absence from duty were on record and not denounced in his pleadings. He did not report back. Absence from duty is gross misconduct under section 44 of the Act justifying summary dismissal.
Whether the claims for public holidays and annual leave were due
Public holiday pay of Ksh.217,729 and leave pay of Ksh.38,989 awarded since the respondent failed to produce work records
Under the applicable Wage Orders, work on public holidays attracts double payment, and the court assessed 10 days per year (9 days for February 2006 to January 2007). No records showed the claimant was allowed annual leave under section 28 of the Act for the last two/three years, so leave pay was computed on the last wage. The respondent failed to discharge its burden of producing work records.
Legal principles established
#- The burden to justify termination of employment lies on the employer under section 43 of the Employment Act, while the employee bears the burden to prove unfair termination under section 47(5); once the employee adduces prima facie evidence, the burden shifts to the employer
- The employer bears the duty to file work records; where work records are not produced, the employee's claims as to terms and conditions of employment are taken as true
- Where there is no written contract, the existence of an employment relationship is discerned from distinguishing factors such as control, payment of wages/salary, statutory deductions, leave and subjection to disciplinary procedures
- Absence from duty constitutes gross misconduct under section 44 of the Employment Act justifying summary dismissal
Court orders
#- 1.Payment of Kshs. 217,729 for work during public holidays
- 2.Payment of Kshs. 38,989 as leave pay
- 3.Certificate of service to be issued pursuant to section 51 of the Employment Act, 2007
- 4.Costs awarded to the claimant at 50%
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act, 2007); the court declined jurisdiction over the work injury claim under the Work Injury Benefits Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Karanja Mbogo v Leah Wangui Mburu t/a Gilgil Distributors Limited [2020] KEELRC 612 (KLR)", Case Analysis (2020). Cause No. 89 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/612/eng@2020-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.