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ELRCPartially AllowedCause No. 2023 of 2013· [2020] KEELRC 1373 (KLR)

Peter Ogweno Onyango v Metal Equipment Engineering Company Limited [2020] KEELRC 1373 (KLR)

Employment and Labour Relations Court
27 February 2020
HWHellen S. Wasilwa
1,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a welder ten months' salary after finding his employer unfairly terminated him, using NSSF records to prove long service.

What this practically means

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Executive summary

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The Claimant, a welder, sued the Respondent claiming salary for May 2013, leave allowance, service pay and twelve months' salary for unfair termination, asserting he was employed from February 2002 until terminated without notice on 6th May 2013. The Respondent denied the claim, contending the Claimant was engaged on one-month contracts when need arose, that his last contract lapsed on 6th May 2013, and that all dues were paid. The Claimant testified he was escorted out of the premises by guards without notice and without any misconduct; under cross-examination he acknowledged payslips showing leave pay. The Respondent's witness, an engineering foreman, confirmed the Claimant worked from 2002 to 2013 but produced no documentary evidence, and admitted having no proof that the Claimant was slow in his duties. The court found payslips for various months in 2012 and 2013 proved service over an extended period, and that the absence of contracts predating 2013 supported the Claimant's account that monthly contracts were only introduced in 2013. The court reasoned that the Respondent would not have remitted NSSF dues for a mere monthly contract. It held the Claimant served longer than three months and that his termination was without due process. The claim was partially allowed: the court awarded salary for May 2013 (Kshs. 14,583) and ten months' salary (Kshs. 145,830) as compensation for unlawful and unfair termination, totaling Kshs. 160,413, with costs and interest at court rates from the date of judgment. The claims for leave allowance and service pay were not granted.

Key legal issues

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01

Duration and nature of the employment relationship

Holding

The Claimant served the Respondent from 2002 and was only placed on monthly contracts in 2013, contrary to the Respondent's contention

Reasoning

The court relied on payslips exhibited for various months across 2012 and 2013 showing continuous service, the absence of any contracts before 2013, and the Respondent's unrebutted introduction of the Claimant to NSSF and remittance of dues as its employee, concluding the monthly-contract assertion could not stand.

p. 2
02

Unfair termination

Holding

The termination was done without due process and was therefore unlawful and unfair

Reasoning

The Claimant testified he was escorted out of the premises without notice and without any misconduct. The court found no due process was followed, attracting compensation under Section 45 of the Employment Act as submitted by the Claimant, and awarded 10 months' salary as compensation.

p. 2

Legal principles established

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  • Where an employer remits NSSF dues for an employee, an assertion that the employee served only a short monthly contract is implausible
  • Absence of contracts or payslips from earlier periods supports an inference of longer service than the employer alleges

Court orders

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  1. 1.Respondent to pay the Claimant salary for May 2013 of Kshs. 14,583
  2. 2.Respondent to pay 10 months' salary as compensation for unlawful and unfair termination (10 x 14,583 = Kshs. 145,830)
  3. 3.Total award of Kshs. 160,413
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 45(1)
  • Employment ActSection 35
  • Employment ActSection 35(1)(b)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination and terminal dues)

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, "Peter Ogweno Onyango v Metal Equipment Engineering Company Limited [2020] KEELRC 1373 (KLR)", Case Analysis (2020). Cause No. 2023 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1373/eng@2020-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.