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ELRCPartially AllowedCause No 1703 of 2015· [2021] KEELRC 785 (KLR)

Reuben Owino Obonyo v China Aero Technology International Engineering Corporation [2021] KEELRC 785 (KLR)

Employment and Labour Relations Court
8 October 2021
1,719 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who fails to show up and prove why it fired a worker loses the unfair termination case automatically.

What this practically means

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Executive summary

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The claimant, employed as a mason from October 2013 at a pleaded monthly salary of Kshs. 38,220, sued the respondent (a construction company) claiming salary in lieu of notice, house allowance, service pay, twelve months' compensation under section 49(1)(c) of the Employment Act, interest, costs and a certificate of service. He alleged that in February 2015 he fell from a ladder at work, was unconscious and treated at Mbagathi District Hospital with a recommendation for light duties; on resuming, he was given no duties and on the third day his supervisor and a security officer forcibly removed him from the site on 28th March 2015, terminating his employment without reasons or a hearing contrary to section 41 of the Employment Act. The respondent entered appearance and filed a response but did not attend the hearing or call any witness. The court framed four issues: existence of the employment relationship, fairness of the dismissal, available reliefs, and costs. Relying on the claimant's bank statements showing salary payments and the absence of rebuttal evidence, the court found an employment relationship existed. The respondent's failure to adduce evidence meant the burdens under sections 43 and 45 were not discharged; the dismissal was held neither procedurally nor substantively fair. The court adopted Kshs. 17,335 (from the bank statement) as the monthly salary rather than the pleaded Kshs. 38,220. It awarded five months' gross salary (Kshs. 86,675) as compensation, one month's notice pay (Kshs. 17,335), a certificate of service within 30 days, interest at court rates, and costs to the claimant. Service pay was refused because the claimant was an NSSF member under section 35(5)(c), and house allowance was refused for lack of evidentiary justification.

Key legal issues

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01

Whether the claimant was an employee of the respondent

Holding

The Court found an employee-employer relationship existed on the strength of the claimant's evidence, including a bank statement showing salary payments from the respondent, unrebutted by any evidence from the respondent.

Reasoning

Section 2 of the Employment Act defines an employee as a person employed for wages or salary, and a contract of service may be oral or written, expressed or implied. The claimant's bank statement showed salary payments from the respondent. The respondent, though served, did not attend the hearing or call any witness, leaving the claimant's evidence unrebutted. The Court was thus convinced a contract of service existed, though the actual salary was determined from the bank statement rather than the pleaded figure.

p. 2
02

Whether the dismissal was lawful and fair

Holding

The dismissal was neither procedurally nor substantively fair, as the respondent failed to discharge the statutory burden of proving the reasons for termination.

Reasoning

Sections 43 and 45 of the Employment Act require the employer to prove both a fair reason related to conduct, capacity, compatibility or operational requirements, and adherence to fair procedure. The respondent did not put any witness before the Court. The claimant testified he was removed from the site without any explanation or opportunity to be heard, contrary to section 41. In the absence of rebuttal evidence, the Court concluded the burden was not discharged and the dismissal was unfair on both limbs.

p. 3
03

What reliefs are available to the claimant

Holding

The claimant was awarded five months' gross salary as compensation (Kshs. 86,675) based on a monthly salary of Kshs. 17,335, plus one month's salary in lieu of notice (Kshs. 17,335) and a certificate of service; service pay and house allowance were declined.

Reasoning

The compensatory award under section 49(1)(c) is discretionary and depends on the circumstances of each case, including the employer's failure to avail reasons and the length of employment. The claimed salary of Kshs. 38,220 was unsupported by documents; the bank statement showed Kshs. 17,335 for February 2015, which the Court adopted. Service pay was barred by section 35(5)(c) because the claimant was an NSSF member. Notice pay was awarded because no notice was demonstrated. House allowance lacked evidentiary justification.

p. 3

Legal principles established

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  • An employee must prove that his employment was terminated, whereupon the employer bears the duty of proving valid and fair reasons for termination under sections 43 and 45 of the Employment Act.
  • Where an employer adduces no evidence to prove the reasons for termination, the burden under section 43 is not discharged and the dismissal is unfair both procedurally and substantively.
  • Service pay is not awardable to employees who were members of schemes identified under section 35(5) of the Employment Act, such as the NSSF.

Court orders

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  1. 1.A declaration that the dismissal was unfair.
  2. 2.Compensation pursuant to section 49 (1) (c) of the Employment Act – Kshs. 86,675.
  3. 3.Salary in lieu of notice – Kshs. 17,335.
  4. 4.A certificate of service to issue to the claimant within 30 days of the Judgment.
  5. 5.Interest on the compensation and notice pay at Court rates from date of filing the matter till full payment.
  6. 6.Costs of the suit to the claimant.
  7. 7.The sums granted shall be subjected to relevant statutory deductions.

Authorities

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Legislation

  • Employment ActSection 2 (definitions of employee and contract of service)
  • Employment ActSection 35(5)(c)
  • Employment ActSection 36
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 49(1)(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (sections 2, 35, 36, 41, 43, 45 and 49)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Reuben Owino Obonyo v China Aero Technology International Engineering Corporation [2021] KEELRC 785 (KLR)", Case Analysis (2021). Cause No 1703 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/785/eng@2021-10-08

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