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ELRCPartially AllowedAmended Memorandum of Claim filed 10.12.2019 (ELRC, Nairobi)· [2021] KEELRC 964 (KLR)

Kavayi C. Wycliffe & 3 others v Azizi Mohammed t/a Mcfrys Restaurant & another [2021] KEELRC 964 (KLR)

Employment and Labour Relations Court
23 September 2021
OMOnismus N Makau
3,816 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the workers' dismissal unfair because the employer could not prove a valid reason or follow fair procedure, awarding them compensation.

What this practically means

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Executive summary

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Four claimants sued the 1st respondent, Azziz Mohamed, and the 2nd respondent, Mcfrys Limited, alleging unfair dismissal between 22.3.2015 and 29.3.2015 and seeking a declaration of unfair termination, terminal benefits of Kshs.2,681,367, certificates of service, costs and interest. The 1st respondent denied employing them, asserting they worked for the 2nd respondent company; the 2nd respondent denied any cause of action. The 1st claimant testified for all four under a written authority. The court framed five issues. It found on a balance of probability that the claimants were employed by the 1st respondent personally, since he recruited them verbally, issued no appointment letters or payslips and never told them he acted for the company. Their failure to testify individually was not fatal given the Rule 9 authority. On the merits, the employer failed to prove the alleged refusal to sign a sexual harassment policy as the reason for dismissing the 1st, 2nd and 4th claimants - the policy was an afterthought and no service was proved - while the reason for dismissing the 3rd claimant (slapping a colleague and absconding) was proved. No claimant received the section 41 hearing, so the procedure was unfair. The court declared the terminations unfair and unlawful, awarding each claimant one month's notice pay and three months' compensation, plus unpaid February/March 2015 salary for the 1st claimant and 24 days' leave each (totals of Kshs.81,600; 136,000; 81,600; 81,600). Claims for house allowance, service pay and overtime were declined; certificates of service, costs and interest were granted.

Key legal issues

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01

Identity of the employer

Holding

The claimants were employed by the 1st respondent personally, not the 2nd respondent company.

Reasoning

The 1st respondent admitted recruiting the claimants, engaging them verbally, issuing no appointment letters or payslips, and never telling them he acted for the company; nor did he have written authority to recruit for the company. On a balance of probability, they were his employees despite NSSF/NHIF/PAYE being paid under the company.

p. 4
02

Failure of co-claimants to testify

Holding

Not fatal; the claims of the 2nd, 3rd and 4th claimants proceeded on the evidence of CW1.

Reasoning

The co-claimants signed an authority allowing the 1st claimant to plead and testify on their behalf and were present in court satisfied with his evidence. Rule 9 of the ELRC Procedure Rules permits a suit by one person on behalf of others with similar causes of action upon filing a letter of authority.

p. 4
03

Validity and fairness of the reason for termination

Holding

Unproved for the 1st, 2nd and 4th claimants; proved for the 3rd claimant.

Reasoning

No evidence (e.g. delivery book) showed the claimants were served with the alleged sexual harassment policy, and the defence counsel's response letters never mentioned refusal to sign it, making it an afterthought. The 3rd claimant's dismissal for slapping a colleague and absconding was not rebutted and thus proved.

p. 5
04

Fairness of procedure

Holding

The termination was procedurally unfair for all claimants.

Reasoning

No written evidence or eyewitnesses proved any explanation of the alleged policy; and the 3rd claimant was admittedly not given a hearing, with no evidence of efforts to reach him. The process did not accord with section 41 of the Employment Act.

p. 5

Legal principles established

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  • The burden is on the employer to prove a valid and fair reason and a fair procedure for termination under sections 43 and 45 of the Employment Act; failure to do so renders the termination unfair.
  • A director who personally recruits and engages employees without informing them they are being engaged on behalf of a company, and without issuing any company documents, is the employer.
  • Under Rule 9 of the ELRC Procedure Rules, a claim does not fail merely because co-claimants did not testify where they gave written authority to one claimant to plead and testify on their behalf.
  • Section 41 of the Employment Act requires the employer to explain the reason for termination and hear representations before dismissal; an alleged explanation without documentary or eyewitness proof is not established.

Court orders

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  1. 1.Declaration that the termination of the claimants' employment contracts was unfair and unlawful.
  2. 2.Judgment for the claimants: each awarded one month's salary in lieu of notice plus 3 months' salary as compensation for unfair termination; unpaid February and March 2015 salary for the 1st claimant; 24 days' leave per claimant (totals: 1st Claimant Kshs.81,600; 2nd Claimant Kshs.136,000; 3rd Claimant Kshs.81,600; 4th Claimant Kshs.81,600).
  3. 3.Awards subject to statutory deductions, plus costs and interest at court rates from the date of judgment.
  4. 4.Claimants to be issued with Certificates of Service.

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsections 41, 42(1), 44(3) and (4)
  • Employment Actsection 37
  • Employment Actsection 47(5)
  • Evidence Actsection 107
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 9
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 28(3)
  • Regulations for Hotel and Caterers Tradeannual leave provisions (minimum 24 days)

Cases cited (7)

  • Peter Wambani v Bethuel Ndung'u t/a Maji Pump Ventures
    [2020] eKLR
  • Kenya Plantation & Agricultural Workers Union v James Finlays Kenya Limited
    [2017] eKLR
  • Justo Ngoka & 225 others v Rai Ply Wood (K) Ltd
    unreported
  • Ndungu Mugoya & 473 others v Stephen Wangombe & 9 others
    [2005] eKLR
  • Multichoice Kenya Limited v Mainkam Limited & another
    [2013] eKLR
  • Krystaline Salt Limited v Kwekwe Mwakele & 67 others
    [2017] eKLR
  • Rashid Mazuri Ramadhani & 10 others v Doshi & Company (Hardwear) Limited & another
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance claim; no specific constitutional provision invoked)

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, "Kavayi C. Wycliffe & 3 others v Azizi Mohammed t/a Mcfrys Restaurant & another [2021] KEELRC 964 (KLR)", Case Analysis (2021). Amended Memorandum of Claim filed 10.12.2019 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/964/eng@2021-09-23

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