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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 517 (KLR)

Mwinyi Ahmad Mwinyi Haji v Mara Concord Game Lodge t/a Leo Investment Limited & another [2021] KEELRC 517 (KLR)

Employment and Labour Relations Court
11 November 2021
2,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, Mwinyi Ahmed Mwinyi, sued the respondents alleging he was employed as a manager in November 2015 at a monthly salary of Kshs. 99,750 and was verbally dismissed on 4 March 2017 without notice, pay or a disciplinary hearing, contrary to sections 35, 41, 44, 45, 49 and 51 of the Employment Act. He sought terminal dues, leave pay, twelve months' compensation, one month's notice pay, a certificate of service, costs and interest. The respondents denied ever employing him, asserting that the 1st respondent did not exist before 2017, having taken over premises from Furahia Africa Promotions Limited, and contending that the claimant was engaged only as an independent contractor for six months through a consultant, Frank Neugbar. In cross-examination, however, the respondents' legal officer admitted engaging the claimant in October 2016 and that payment vouchers showed he was paid from a salaries account, though only withholding tax was deducted and no consultancy agreement was produced. The court framed three issues: employment status, fairness of termination, and remedies. It found, on the admission and payment records, that the claimant was an employee; that he was dismissed without valid reason or due process under sections 41 and 45; and that he was entitled to remedies. The court awarded one month's notice pay (Kshs. 99,750), ten months' compensation (Kshs. 997,500) and 15 days' terminal dues (Kshs. 49,815), less statutory deductions, totalling Kshs. 1,147,125, with costs and interest from the date of judgment.

Key legal issues

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01

Whether the claimant was an employee or an independent contractor

Holding

The claimant was an employee of the respondent

Reasoning

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.

p. 3
02

Whether the termination was unfair and unjustified

Holding

The dismissal was unfair and unjustified under section 45 of the Employment Act

Reasoning

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.

p. 4
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What remedies the claimant is entitled to

Holding

One month's notice pay, 10 months' compensation under section 49, and 15 days' terminal dues, less statutory deductions

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.1 month salary in lieu of notice of Kshs. 99,750
  2. 2.10 months' salary as compensation for unfair and unlawful termination (Kshs. 997,500)
  3. 3.Terminal dues of 15 days' salary for the year worked (Kshs. 49,815), less statutory deductions, totalling Kshs. 1,147,125
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsections 2, 8, 9, 10, 35, 41, 42(1), 43, 44, 45, 49, 51

Cases cited (9)

  • Charles Mutua Mwanzi –v Invesco Assurance Company Limited
    [2016] eKLR
  • Martin Ireri Ndwiga V Olerai Management Ciompany
    [2017] eKLR
  • Paul Ochieng Agola V Gateway Marine Service Limited
    [2018] eKLR
  • Fredrick Odongo Owegi -v- CFC Life Assurance Limited
    [2014] eKLR
  • George Kamau Nderitu and another V Intercontinental Hotel and Another
    [2015] eKLR
  • Beloff vs Preddram Limited
    [1973] ALL ER 241
  • Simmons Vs Heath Laudry Company
    [1910] 1 KB 543
  • O’ Kelly Vs Trusthouse Forte
    [1983] 3 ALL ER 456
  • Byakika V Mutiso menez International Unlimited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007

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, "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.