Edson Fredrick Katunda v Doshi & Company (Hardwares) Limited & another [2020] KEELRC 617 (KLR)
The bottom line
#A Mombasa court ruled employers must keep proper records, or lose employment disputes by default.
What this practically means
#Executive summary
#Key legal issues
#Nature and status of the Claimant's employment
The assertion that the Claimant was a casual employee was unsupported by evidence and rejected; the Claimant's account of continuous employment was adopted
The Respondents' HR Manager produced only a summary of days worked without the source documents, and admitted he was not present when the Claimant worked. Under Sections 10 and 74 of the Employment Act the employer must keep employment records; having failed to produce attendance registers or payment vouchers, Section 10(7) shifted the burden of proof to the Respondents, and the Claimant's account was adopted.
Whether the termination was unlawful
The termination was without valid reason and without procedural fairness, contrary to Sections 43 and 41 of the Employment Act
The Respondents alleged the Claimant declined a fixed term contract and deserted work, but produced no evidence that any contract was issued; the Claimant denied receiving one. With no employment records adduced, the burden shifted to the Respondents, whose assertions could not stand. The court found both substantive and procedural fairness were breached.
Remedies entitlement
Compensation of 4 months' salary, notice pay, service pay and leave pay were awarded; certificate of service granted
Compensation was scaled to four months considering length of service and the Respondents' failure to follow the law. Service pay was allowed because no evidence of NSSF remittance was adduced, and leave pay was allowed as no leave records debunked the Claimant's assertion that he was never allowed annual leave.
Legal principles established
#- Under Sections 10 and 74 of the Employment Act the employer must maintain employment records, and failure to avail them shifts the burden of proof as to the terms of employment to the employer under Section 10(7)
- A termination without valid reason and without procedural fairness is unlawful
Court orders
#- 1.Judgment entered in favour of the Claimant for Kshs. 99,009 comprising 4 months' salary in compensation (Kshs. 61,560), 1 month's salary in lieu of notice (Kshs. 15,390), service pay for 1 year (Kshs. 7,695), leave pay for 1 year (Kshs. 10,773) and prorata leave for 4 months (Kshs. 3,591)
- 2.The award to attract interest at court rates from the date of judgment until payment in full
- 3.The Claimant is entitled to a certificate of service
- 4.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (first-instance claim under the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edson Fredrick Katunda v Doshi & Company (Hardwares) Limited & another [2020] KEELRC 617 (KLR)", Case Analysis (2020). Memorandum of Claim dated 11th February 2016, filed 15th February 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/617/eng@2020-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.