Mwinyi Ahmad Mwinyi Haji v Mara Concord Game Lodge t/a Leo Investment Limited & another [2021] KEELRC 517 (KLR)
The bottom line
#Kenya's Employment Court awarded a manager over Kshs 1.1 million after finding he was an employee, not a contractor, who was fired unfairly.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee or an independent contractor
The claimant was an employee of the respondent
The respondent's legal officer admitted engaging the claimant in October 2016, and confirmed he was paid from a salaries account. No consultancy agreement was produced despite the allegation that the claimant was an independent contractor. The claimant also produced a leave application form and minutes of a meeting showing his role as manager. On that evidence, absent contrary proof, the court found an employment relationship existed.
Whether the termination was unfair and unjustified
The dismissal was unfair and unjustified under section 45 of the Employment Act
Section 41 requires an employer, before termination, to explain the reasons and hear the employee's representations. There was no evidence the claimant was subjected to any disciplinary process. He was dismissed verbally, without notice and without apparent reason. The employer thus failed to prove both a valid reason and fair procedure, rendering the termination unfair under section 45.
What remedies the claimant is entitled to
One month's notice pay, 10 months' compensation under section 49, and 15 days' terminal dues, less statutory deductions
Having found unfair termination, the court awarded one month's salary in lieu of notice (Kshs. 99,750), ten months' salary as compensation for unfair and unlawful termination (Kshs. 997,500), and 15 days' salary for the year worked (Kshs. 49,815), all subject to statutory deductions, plus costs and interest from the date of judgment.
Legal principles established
#- An admission by a respondent's witness of engagement with the claimant coupled with payment from a salaries account, without contrary evidence, establishes an employment relationship
- Termination of an employee without valid reason and without due process under sections 41 and 45 of the Employment Act is unfair and unjustified
Court orders
#- 1.1 month salary in lieu of notice of Kshs. 99,750
- 2.10 months' salary as compensation for unfair and unlawful termination (Kshs. 997,500)
- 3.Terminal dues of 15 days' salary for the year worked (Kshs. 49,815), less statutory deductions, totalling Kshs. 1,147,125
- 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwinyi Ahmad Mwinyi Haji v Mara Concord Game Lodge t/a Leo Investment Limited & another [2021] KEELRC 517 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/517/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.