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ELRCPartially AllowedCause No 425 of 2016· [2021] KEELRC 668 (KLR)

Zacharia Akhabochi Sowayi v United Millers Limited [2021] KEELRC 668 (KLR)

Employment and Labour Relations Court
21 October 2021
1,886 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 that an employer without written contracts bears the burden of proof, and firing a worker without a hearing is unfair.

What this practically means

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Executive summary

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The claimant, employed (on his case) from August 2008 as a general labourer in the respondent's refinery department at Kshs.435 per day shift and Kshs.918 per night shift, seven days a week without rest days, sued for unfair termination. He averred that in December he was denied entry at the gate on instructions of members of the works committee, was terminated without notice or hearing, was never paid leave save Kshs.2,627.49 in January 2013, and received only Kshs.2,008/- through the labour office. The respondent denied the claim, contending the claimant was engaged in 2012 as a casual labourer on daily wages of Kshs.335, deserted duty from 17th November 2012, and that the suit was premature for failure to first exhaust the labour office. The respondent cited sections 35(1) and 37 of the Employment Act on casual employment; the claimant cited Kenya Plantation and Agricultural Workers Union v Mununga Leaf Base. The court held the suit was properly before it, found the respondent breached section 9(1) by failing to issue a written contract, and relying on section 10(7) placed the burden of proof on the employer, adopting the claimant's account of employment from 2008 to 2013 at the wages he stated. Finding no hearing or disciplinary process preceded the termination, the court held the dismissal unfair under section 41 and awarded notice pay, overtime, public holiday pay, gratuity for five years and eight months' compensation, totalling Kshs.211,038/= less statutory deductions, with costs and interest to the claimant.

Key legal issues

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01

Burden of proof where no written contract is produced

Holding

The court adopted the claimant's stated employment period and wages (2008–2013 at Kshs.435 day shift / Kshs.918 night shift) because the employer produced no written contract

Reasoning

The claimant alleged employment from August 2008; the respondent alleged employment from January 2012. Neither party produced documentary proof: the payment schedules bore no signature of the claimant and no appointment letter was issued. Relying on section 10(7) of the Employment Act, the court placed the burden on the employer and adopted the claimant's version, treating the employment as running from 2008 to 2013.

p. 3
02

Whether termination was unfair for want of notice and hearing

Holding

The claimant was unfairly dismissed; he was denied entry at the gate in December and was never given a hearing or subjected to disciplinary process, contrary to section 41 of the Employment Act

Reasoning

The respondent asserted desertion from 17th November 2012, but the claimant said he was verbally terminated and denied entry by guards. The court found the claimant was given no opportunity to explain his absence and no disciplinary process was undertaken. Section 41 requires explanation and hearing before termination on grounds of misconduct; its breach rendered the dismissal unfair.

p. 3
03

Whether the suit was prematurely instituted for failure to exhaust the labour office avenue

Holding

The objection failed; the claimant had reported to the labour office and received only Kshs.2,008/-, and the court was properly seized as the final arbiter

Reasoning

The respondent argued the dispute should have gone to the labour office first. The claimant showed he reported the termination to the labour office and was paid only Kshs.2,008/- in terminal dues, which he found unsatisfactory. Citing the authority relied on by the claimant, the court accepted that after all other avenues failed, the claimant could engage the court.

p. 2
04

Breach of section 9(1) of the Employment Act for failure to issue a written contract

Holding

The respondent was in breach of section 9(1) for failing to issue an appointment letter despite the claimant working for it

Reasoning

The court noted that no appointment letter was issued to the claimant despite acknowledged employment. Section 9(1) requires contracts of service of three months or more to be in writing. This breach underpinned the invocation of section 10(7) and the adoption of the claimant's account of terms and duration.

p. 2

Legal principles established

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  • Where an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment lies on the employer
  • In the absence of documentary evidence from the employer as to the terms and period of employment, the court will adopt the employee's account
  • Termination without notification and hearing breaches section 41 of the Employment Act and is unfair
  • A contract of service for three months or more must be in writing

Court orders

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  1. 1.Payment of 1 month salary in lieu of notice at Kshs.10,440/= (435 x 6 x 4)
  2. 2.Overtime at 1 hour per day computed at Kshs.48,828/= over 5 years
  3. 3.Payment for 49 public holidays worked at Kshs.46,040.40
  4. 4.Gratuity for 5 years at half salary for each year worked at Kshs.25,175/=
  5. 5.Compensation equivalent to 8 months' salary for unfair termination at Kshs.80,560/=
  6. 6.Total award of Kshs.211,038/= less statutory deductions
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act 2007Section 9(1)
  • Employment Act 2007Section 10(7)
  • Employment Act 2007Section 35(1)
  • Employment Act 2007Section 37
  • Employment Act 2007Section 41(1) and (2)

Cases cited (1)

  • Kenya Plantation and Agricultural Workers Union - v Mununga Leaf Base
    [2013] eKLR
Jurisdiction invoked
Not expressly stated; the court exercised its jurisdiction under the Employment Act 2007 over a claim of unfair termination and terminal benefits

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, "Zacharia Akhabochi Sowayi v United Millers Limited [2021] KEELRC 668 (KLR)", Case Analysis (2021). Cause No 425 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/668/eng@2021-10-21

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