Joash Oyaro Mosegere v Prime Steel Mills Limited [2021] KEELRC 405 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee of the Respondent despite payment through a third party, Jokali Handling Services
The Claimant was for all purposes an employee of the Respondent
The Respondent admitted employing the Claimant and issuing no letter of employment. Its witness confirmed the Respondent retained a similar casual employees' list, showing the work was integral to its operations. There was no evidence the Claimant accepted the outsourcing arrangement or left voluntarily. The employer failed to produce employment records, which it was obliged to do, so the court found the employment relationship subsisted with the Respondent.
Whether the termination was lawful and fair under section 41 of the Employment Act
The termination was unlawful and unfair for breach of the mandatory procedural requirements of section 41
The employer produced no employment record and its assertion that the Claimant quit was unsupported. The Claimant's evidence that he was stopped from work without notice or reason, and without a hearing, was unrebutted. Section 41 requires the employer to explain reasons and hear representations before termination; none of this occurred, rendering the dismissal substantively and procedurally unfair.
Whether the Claimant was entitled to the reliefs sought
Compensation of 9 months' gross salary, notice pay, certificate of service, interest and costs were awarded; the overtime claim was disallowed
Under section 49(1)(c) and (4) of the Employment Act the court exercised discretion considering the 3-year length of service, lack of reinstatement option and absence of other compensation. Notice pay was due as employment had converted after continuous service. The overtime claim failed on the documentary evidence showing overtime was paid. The leave claim was new in submissions and disregarded.
Legal principles established
#- The employer bears the duty to produce employment records; failure to do so leaves unchallenged the employee's evidence of unfair termination
- Section 41 of the Employment Act mandatorily requires notice and hearing before termination; breach renders the termination unlawful and unfair
- Outsourcing parameters: an employer will not be permitted to transfer employees' services to an outsourcing agency without each affected employee's express acceptance, and must settle outstanding obligations first
Court orders
#- 1.Compensatory damages for unfair dismissal equivalent of 9 months gross salary at Kshs.12,990/- per month, totalling Kshs.116,910/-
- 2.Notice pay of Kshs.12,990/- (one month gross salary)
- 3.The award in (a) and (b) is subject to statutory deductions
- 4.Interest on the award at court rates from the date of the claim until payment in full
- 5.Issuance of a certificate of service under section 51 of the Employment Act
- 6.Costs of the suit to be borne by the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance claim; no specific constitutional provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njenga v Prime Steel Mills Limited (Cause 2243 of 2016) [2024] KEELRC 391 (KLR)[2024] KEELRC 391 (KLR)28 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Joash Oyaro Mosegere v Prime Steel Mills Limited [2021] KEELRC 405 (KLR)", Case Analysis (2021). Cause No 777 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/405/eng@2021-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.