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ELRCPartially AllowedCause No 1940 of 2015· [2020] KEELRC 1082 (KLR)

Njeru Evanson Mwaniki v Euro Petroleum Limited [2020] KEELRC 1082 (KLR)

Employment and Labour Relations Court
15 May 2020
3,233 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed as a turn boy on 1st January 2007, sued for unlawful and unfair termination on 13th August 2014, alleging he was dismissed for alleged neglect of duties without notice or a hearing, and claiming terminal dues totalling Kshs.939,745. The respondent admitted the employment but maintained the dismissal was for absconding lawful duty after an oral invitation to a disciplinary meeting, that the salary was a consolidated Kshs.10,200, and that leave was taken. The court framed three issues: date of employment, validity of the termination, and entitlement to reliefs. It found employment commenced on 1st January 2007, RW1's contrary testimony being an unsupported contradiction of the pleadings. On fairness, the court applied the twofold test of substantive justification and procedural fairness under Sections 45(2) and 47(5) of the Employment Act. The respondent produced no proof of a disciplinary hearing and failed to prove the alleged abscondment, as the claimant was demonstrably at work on the day of dismissal. The termination was therefore unlawful and unfair for breach of Section 41. The court awarded one month's salary in lieu of notice (Kshs.12,750), pay in lieu of untaken leave (Kshs.72,086), and 10 months' salary compensation (Kshs.127,500), totalling Kshs.212,336, plus a certificate of service, costs and interest. Claims for overtime, house allowance, public holiday pay and severance were dismissed for lack of proof or inapplicability. Amounts awarded were made subject to statutory deductions.

Key legal issues

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01

Date of employment

Holding

The claimant was employed on 1st January 2007; RW1's testimony that he was employed in 2013 contradicted the defence pleadings and witness statement

Reasoning

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.

p. 4
02

Whether the termination was valid procedurally and substantively

Holding

The termination was unlawful and unfair for failure to comply with Section 41 and failure to prove the claimant absconded duty

Reasoning

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.

p. 4
03

Salary in lieu of notice

Holding

Awarded Kshs.12,750, the claimant's pleaded salary, the respondent failing to prove a lower salary of Kshs.10,200

Reasoning

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.

p. 5
04

Compensation for unfair termination

Holding

Awarded 10 months' salary, Kshs.127,500, under Section 49

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.One month's salary in lieu of notice of Kshs.12,750
  2. 2.Pay in lieu of annual leave days not taken of Kshs.72,086
  3. 3.10 months' salary compensation for unfair termination of Kshs.127,500
  4. 4.Issuance of a Certificate of Service
  5. 5.Costs of the suit to the Claimant
  6. 6.Interest at Court rates from the date of Judgment until payment in full
  7. 7.The awarded amounts to be subject to statutory deductions

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 35, 47, 48, 159(2)(d)
  • Employment Act, 2007Sections 10(7), 35, 36, 41, 44(4)(a), 45, 45(2), 47(5), 49, 51
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Liz Ayany v Leisure Lodges Limited
    (2018) eKLR
  • Musee Nguthi v Shabiby Transport Services Limited
    (2018) eKLR
  • Iyego Farmers Co-operative Sacco v Kenya Union of Commercial Food & Allied Workers
    (2015) eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited
    (2013) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Nicholus Muasya Kyula v FarmChem Limited
    (2012) eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.