Njeru Evanson Mwaniki v Euro Petroleum Limited [2020] KEELRC 1082 (KLR)
The bottom line
#A Kenyan court ruled a turn boy's dismissal unfair because the employer had no written proof of a disciplinary hearing, awarding him over Kshs.212,000.
What this practically means
#Executive summary
#Key legal issues
#Date of employment
The claimant was employed on 1st January 2007; RW1's testimony that he was employed in 2013 contradicted the defence pleadings and witness statement
Both the claim and witness statement pleaded employment on 1st January 2007, and the respondent's defence and RW1's own witness statement confirmed this. RW1's oral evidence that the claimant was employed in 2013 contradicted those averments and was unsupported by evidence. The Court therefore resolved the contradiction in favour of the pleaded date of 1st January 2007.
Whether the termination was valid procedurally and substantively
The termination was unlawful and unfair for failure to comply with Section 41 and failure to prove the claimant absconded duty
The employer bore the burden under Section 47(5) of justifying the grounds and procedure of termination. It alleged gross misconduct for absconding duty and an oral invitation to a disciplinary meeting, but produced no documentary proof of the hearing or of the abscondment. The claimant, by contrast, was demonstrably present at work on the day of dismissal. Absent evidence, both the substantive reason and procedural fairness failed.
Salary in lieu of notice
Awarded Kshs.12,750, the claimant's pleaded salary, the respondent failing to prove a lower salary of Kshs.10,200
Under Section 36 of the Employment Act the claimant was entitled to one month's notice. The respondent, as custodian of employment records, asserted a lower salary of Kshs.10,200 but produced no records to support it. Section 10(7) placed the burden of proving contractual terms on the employer, so the claimant's pleaded salary of Kshs.12,750, corroborated by bank statements, was accepted.
Compensation for unfair termination
Awarded 10 months' salary, Kshs.127,500, under Section 49
Having found the termination unlawful and unfair, the Court exercised its discretion under Section 49 of the Employment Act. In fixing compensation it considered the length of the claimant's employment (approximately seven years, from January 2007 to August 2014) and the circumstances surrounding the termination, awarding ten months' gross salary rather than the twelve months sought.
Legal principles established
#- Termination is unfair where the employer fails to prove a valid reason or fair procedure
- Where an employer fails to produce a written contract, the burden of proving the terms of employment rests on the employer
- Unproven allegations of a disciplinary hearing cannot sustain a termination under Section 41
Court orders
#- 1.One month's salary in lieu of notice of Kshs.12,750
- 2.Pay in lieu of annual leave days not taken of Kshs.72,086
- 3.10 months' salary compensation for unfair termination of Kshs.127,500
- 4.Issuance of a Certificate of Service
- 5.Costs of the suit to the Claimant
- 6.Interest at Court rates from the date of Judgment until payment in full
- 7.The awarded amounts to be subject to statutory deductions
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 (Sections 35, 36, 41, 45, 49 and 51) and Articles 27, 28, 35 and 47 of the Constitution invoked in the claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njeru Evanson Mwaniki v Euro Petroleum Limited [2020] KEELRC 1082 (KLR)", Case Analysis (2020). Cause No 1940 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1082/eng@2020-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.