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ELRCPartially AllowedPetition No. 10 of 2019· [2021] KEELRC 333 (KLR)

Henry Simiyu Wanyonyi v Unga Holdings Limited & another [2021] KEELRC 333 (KLR)

Employment and Labour Relations Court
23 November 2021
HWHellen Wasilwa
3,644 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 ruled a labour outsourcing firm remains a worker's true employer and must pay Kshs. 2.17 million for firing him after he went blind.

What this practically means

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Executive summary

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The petitioner, a former loader, sued the 1st and 2nd respondents alleging discrimination on grounds of health status and disability under Article 27, violation of the right to fair labour practices under Article 41, and unlawful, unfair termination under the Employment Act after he lost his sight in August 2018. He sought declarations, constitutional damages, 12 months' compensation, notice pay, leave pay, underpayment dues and severance pay. The 1st respondent denied employing him, claiming he was supplied by the 2nd respondent, an independent labour provider. The 2nd respondent denied firing him, asserting he absconded after falling ill. The court framed four issues: identity of the employer, fairness of termination, constitutional violations and remedies. Applying the Court of Appeal decision in Abyssima Iron & Steel, it found the 2nd respondent was the employer since it hired, deployed, paid and remitted NSSF dues for the petitioner. The court rejected the abscondment claim, finding the petitioner was constructively terminated when his salary stopped on account of his blindness. It held that termination on grounds of blindness infringed Article 27(4) and that termination without due process infringed Article 41. It awarded Kshs. 2,000,000 in constitutional damages, 10 months' salary for unfair termination, one month's notice pay and unpaid leave, totalling Kshs. 2,173,024 before statutory deductions, all payable by the 2nd respondent with costs and interest.

Key legal issues

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01

Identity of the employer

Holding

The 2nd respondent was the petitioner's employer

Reasoning

The NSSF statement showed Manpower Networks Ltd as the employer remitting dues. The 2nd respondent hired, deployed, paid and remitted statutory deductions for the petitioner. Following Abyssima Iron & Steel Ltd, the court held the outsourcing firm retained the employer position despite deployment to the client's premises.

p. 5
02

Unfair termination

Holding

The petitioner was constructively terminated on account of his sickness, unfairly and unjustly

Reasoning

The petitioner lost his sight in August 2018. The court found the respondents stopped paying his salary on account of his sickness, amounting to constructive termination, and that the claim he absconded was untrue since counsel wrote a demand notice which went unanswered.

p. 5
03

Constitutional rights infringement

Holding

Articles 27 and 41 of the Constitution were infringed

Reasoning

Termination on the basis of blindness was direct discrimination on grounds of disability contrary to Article 27(4), and termination without due process infringed the right to fair labour practices under Article 41.

p. 6

Legal principles established

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  • A labour outsourcing firm that hires, deploys, pays and remits statutory dues for a worker remains the employer notwithstanding deployment at a third party's premises
  • Termination on account of blindness infringes Article 27(4) of the Constitution on disability discrimination

Court orders

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  1. 1.2nd respondent to pay the petitioner Kshs. 2,000,000 as damages for breach of constitutional rights
  2. 2.2nd respondent to pay 10 months' salary (Kshs. 137,154) as compensation for unfair and unjustified termination
  3. 3.1 month's salary in lieu of notice (Kshs. 13,715)
  4. 4.Unpaid leave not taken as pleaded (Kshs. 22,155)
  5. 5.Total award of Kshs. 2,173,024 subject to statutory deductions
  6. 6.2nd respondent to pay costs of the suit plus interest at court rates from the date of judgment
Jurisdiction invoked
Articles 27, 41 and 23(3) of the Constitution of Kenya; Employment and Labour Relations Court Act; Employment Act

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, "Henry Simiyu Wanyonyi v Unga Holdings Limited & another [2021] KEELRC 333 (KLR)", Case Analysis (2021). Petition No. 10 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/333/eng@2021-11-23

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