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ELRCPartially AllowedCause No 1092 of 2017· [2021] KEELRC 907 (KLR)

Meshack Mokua Samson v Asille Trading (E.A.) Limited [2021] KEELRC 907 (KLR)

Employment and Labour Relations Court
3 September 2021
2,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fired a worker without notice or a hearing, and without a written contract, was ordered to pay over Kshs. 220,000.

What this practically means

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Executive summary

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In an undefended unfair termination claim, the ELRC at Nairobi (David Nderitu, J) found for the Claimant. The Claimant, engaged on 1st April 2012 as a casual at Kshs.13,200 monthly and later converted to permanent monthly employment, worked as a machine operator and forklift/machine attendant until his termination on 11th November 2015. He complained that in November 2015 the Respondent recovered from his salary a NEMA fine for expired drugs found in a first aid kit box - not his responsibility - and then terminated him without notice, reasons or a disciplinary hearing, and without paying house allowance, leave or terminal dues. The Respondent entered appearance but filed no defence and did not attend the hearing; the Claimant's unchallenged testimony accordingly stood. The court framed four issues: existence and terms of employment; fairness of termination; reliefs and quantum; and costs. Applying Section 9 of the Employment Act, it held the claimant was a permanent employee, inferring terms from the Act's minimum terms (citing Robai Musinzi v Mohammed Safdar Khan and Joseph Okelo Adhiambo v YJ Elmi). Under Sections 43 and 45, the unexplained, unproved termination without notice or hearing was held substantially and procedurally defective, unfair, irregular and unlawful. Quantum was computed on the October 2015 basic pay of Kshs.13,283.50: one month's salary in lieu of notice (Kshs.13,383.60), service pay (Kshs.25,651.90), untaken leave (Kshs.35,913), unpaid house allowance (Kshs.92,346.15) and four months' compensation under Section 49(1) (Kshs.53,534), totalling Kshs.220,829. A declaration of unfair termination issued, the Respondent was ordered to issue a certificate of service under Section 51, and costs of the cause were awarded to the Claimant, to be agreed or taxed.

Key legal issues

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01

Whether the claimant was a permanent employee of the respondent

Holding

The court found the claimant was a permanent employee from 1st April 2012 to 11th November 2015, inferring terms from the Employment Act's minimum terms because the respondent failed to provide a written contract.

Reasoning

Although engagement began as casual/fixed-term, the evidence showed it became permanent monthly employment. Section 9 of the Act was contravened by the employer's failure to reduce the contract to writing and supply a copy. The court relied on Robai Musinzi v Mohammed Safdar Khan and Joseph Okelo Adhiambo & another v YJ Elmi & others in so finding.

p. 2
02

Whether the termination was substantively and procedurally fair

Holding

The termination was substantially and procedurally defective, unfair, irregular and unlawful.

Reasoning

The respondent entered appearance but filed no defence and adduced no evidence. Under Section 43 the employer must prove the reason for termination; under Section 45, absence of notice and a disciplinary hearing renders termination procedurally defective. The claimant's unchallenged testimony therefore stood.

p. 3
03

What reliefs and quantum follow from the unlawful termination

Holding

The court awarded one month's salary in lieu of notice, service pay for 46 months, pay for untaken leave, unpaid house allowance at 15% of basic pay, and four months' salary as compensation under Section 49(1).

Reasoning

Using the last verifiable basic pay of Kshs.13,283.50 per the October 2015 payslip (gross Kshs.13,383.60), the court computed each head under Sections 28, 31 and 49(1) of the Act. Compensation was limited to four months because no unique skills were shown, though the court noted the difficulty of securing employment.

p. 3

Legal principles established

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  • The employer bears the burden of proving that a termination was lawful under Section 43 of the Employment Act; failure to file a defence or tender evidence leaves the claimant's unchallenged evidence standing.
  • Where an employer fails to reduce the employment contract to writing or supply a copy, the court will rely on the minimum statutory terms of the Employment Act to infer the terms of employment.
  • Termination without notice and without a disciplinary hearing is procedurally defective under Section 45 of the Employment Act.

Court orders

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  1. 1.A declaration is hereby issued that the termination of the Claimant in his employment by the Respondent was unfair, unprocedural and unlawful.
  2. 2.One month's salary in lieu of notice - Kshs.13,383.60
  3. 3.Service pay – Kshs.25,651.90
  4. 4.Pay for leave days not taken - Kshs.35,913
  5. 5.Unpaid house allowance – Kshs.92,346.15
  6. 6.Compensation for unlawful termination – Kshs.53,534.00 (total award Kshs.220,829)
  7. 7.The Respondent is ordered to issue the Claimant with a certificate of service in accordance with Section 51 of the Act.
  8. 8.Costs of the cause to the Claimant to be agreed or taxed.

Authorities

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Legislation

  • Employment ActSection 9
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 28
  • Employment ActSection 31
  • Employment ActSection 49(1)
  • Employment ActSection 51

Cases cited (2)

  • Robai Musinzi V Mohammed Safdar Khan
    (2012) eKLR
  • Joseph Okelo Adhiambo & another V YJ Elmi & others
    (2012)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 (claim for unfair termination)

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, "Meshack Mokua Samson v Asille Trading (E.A.) Limited [2021] KEELRC 907 (KLR)", Case Analysis (2021). Cause No 1092 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/907/eng@2021-09-03

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