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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 307 (KLR)

Geoffrey Muthoi Muiruri v Naku Modern Feed Limited [2021] KEELRC 307 (KLR)

Employment and Labour Relations Court
30 November 2021
2,190 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 turn boy Kshs 157,715 after finding his employer unfairly dismissed him and then falsely denied he was ever an employee.

What this practically means

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Executive summary

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The claimant, Geoffrey Muthoki Muiruri, sued for unfair termination and terminal dues, contending he was employed as a turn boy from January 2010 until his employment was terminated after he and the respondent's driver were arrested and charged with stealing by servant following the hijacking of the respondent's lorry in April 2014. He averred that after his acquittal he was turned away from work, never recalled, and never subjected to a disciplinary hearing. The respondent denied any continuing employment relationship, asserting the claimant worked only casually for about a month in March 2013, was aboard the lost vehicle without authority, and was never its employee. At trial, the claimant produced invoices and a charge sheet; the respondent's managing director admitted being the complainant in the criminal case and that he had testified there that the claimant was a turn boy, while denying employment. The court held the evidence, including the charge sheet describing the claimant as the director's servant, established an employment relationship despite the denial, and that the respondent failed to explain the circumstances of the termination. The dismissal was found unfair and unjustified for want of due process and valid reason. The court awarded one month's notice pay (Kshs. 9,372.15), house allowance of Kshs. 67,742.90, eight months' salary as compensation for unfair termination (Kshs. 74,977), and service pay for four years (Kshs. 5,623), totaling Kshs. 157,715 less statutory deductions. Other heads, including overtime, were not proved. Costs of the suit plus interest at court rates from the date of judgment were awarded to the claimant.

Key legal issues

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01

Existence of an employment relationship

Holding

The court found that despite the respondent's denial, the evidence showed the claimant was indeed the respondent's employee.

Reasoning

The respondent's director denied employing the claimant, yet the charge sheet for stealing by servant described the claimant as a servant of the director, and the director testified in the criminal court that the claimant was a turn boy of the lost vehicle. The claimant also produced invoices dated 24.10.2012 that were not challenged. These contradictions defeated the defence.

p. 3
02

Unfair termination

Holding

The dismissal was unfair and unjustified as it lacked due process and a valid reason.

Reasoning

The respondent never explained the circumstances under which the claimant ceased working after his acquittal of the criminal charges. Its defence that the claimant was never an employee could not explain how he came to be charged with stealing by servant. No disciplinary hearing was held and no valid reason was established, so the termination failed both procedurally and substantively.

p. 3
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Remedies

Holding

The claimant was awarded notice pay, house allowance, 8 months' compensation and service pay; unproved heads (overtime, underpayment, leave, public holidays, gratuity beyond service pay) were refused.

Reasoning

The court awarded only the heads of claim supported by evidence or admitted practice, computing notice pay and compensation on a gross salary of Kshs. 9,372.15, awarding house allowance as pleaded, and service pay at 15% for 4 years, less statutory deductions, with costs and interest.

p. 3

Legal principles established

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  • A casual employee engaged to work continuously is converted to a regular employee under section 37 of the Employment Act.
  • An employer who fails to keep and produce employment records is disadvantaged under section 10(7) of the Employment Act.
  • Termination without due process and without a valid reason is unfair and unjustified.

Court orders

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  1. 1.One month salary in lieu of notice of Kshs. 9,372.15
  2. 2.Unpaid house allowance of Kshs. 67,742.90
  3. 3.8 months' salary as compensation for unfair termination (8 x 9,372.15 = Kshs. 74,977)
  4. 4.Service pay for 4 years (4 x 15% of 9,372.15 = Kshs. 5,623)
  5. 5.Grand total of Kshs. 157,715 less statutory deductions
  6. 6.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 49(1)(c)
  • Employment Actsection 51
  • Employment Actsection 10(7)
  • Employment Actsection 37
  • Penal CodeSection 281

Cases cited (5)

  • Martin Ireri Ndwiga V Olerai Management Company
    [2017] eKLR
  • Silas Mutwiri V Haggai Multi-Cargo Handling Services Limited
    [2013] eKLR
  • Kesi Mohamed Salim V Kwale International Sugar Co Ltd
    [2017] eKLR
  • Total Kenya Limited Formerly Caltex Oil (K) Ltd Vs Janevams Ltd
    [2015] eKLR
  • Ahmed Mohamed Noor V Abdi Azziz Osman
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim; sections 49(1)(c) and 51 of the Employment Act invoked)

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, "Geoffrey Muthoi Muiruri v Naku Modern Feed Limited [2021] KEELRC 307 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/307/eng@2021-11-30

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