John Mwangi Maina v Golden Cara Investment Limited [2020] KEELRC 1392 (KLR)
The bottom line
#A Kenyan employer who fails to show up, explain, or keep records will lose an unfair termination case — and still face investigation.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was unfair
The termination was unfair because the respondent, which gave no reasons and adduced no evidence, failed to justify the termination under sections 43 and 45 of the Employment Act
Section 43 requires the employer to prove the reasons for termination. The defence amounted to mere denials, no work records were filed, and the respondent did not attend court to urge its case despite a consent hearing date. Following the Wasike decision, the burden is on the employer; failing proof, the termination is deemed unfair under section 45.
Remedies for unfair termination
Notice pay of Ksh.17,250 and one month's compensation under section 49 of Ksh.17,250 were awarded, both inclusive of house allowance since the respondent did not file work records showing the composition of the gross wage
Notice pay is due based on the last gross wage. Compensation under section 49 is discretionary; the court granted one month's salary. Because the respondent did not file records showing what the gross wage constituted, both awards were treated as inclusive of house allowance, which was due though not separately claimed.
Gratuity claim
Gratuity declined as it is payable only where provided for by contract or agreement
The court held that gratuity accrues only under a private treaty, agreement or written contract setting it out as a benefit. The claimant pointed to no such provision, and the alleged non-payment of statutory dues attracts different remedies, so the gratuity claim failed.
Legal principles established
#- Under section 47(5) of the Employment Act the employee bears a minimal evidential burden, while the employer must prove that there were genuine and justified grounds for termination
- Where an employer fails to file work records, the court may assess claims on the claimant's account and applicable law
Court orders
#- 1.Compensation awarded at Ksh.17,250
- 2.Notice pay of Ksh.17,250
- 3.Matter referred to the County Labour Officer, Nakuru for investigation of the respondent's work records to ascertain work hours, due overtime hours, rest days, annual leave and a tabulation thereof within 30 days
- 4.Claimant awarded costs of the suit
- 5.Costs due to the County Labour Officer to be met by the respondent
- 6.Mention on 26th March, 2020 for the County Labour Officer report
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and employment dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Mwangi Maina v Golden Cara Investment Limited [2020] KEELRC 1392 (KLR)", Case Analysis (2020). Cause No. 37 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1392/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.