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ELRCPartially AllowedStatement of Claim dated 28th April, 2018 (Nyeri ELRC)· [2021] KEELRC 1199 (KLR)

Protasio Kinoti v Majani Gardens Limited [2021] KEELRC 1199 (KLR)

Employment and Labour Relations Court
19 July 2021
DMD.K.NJAGI MARETE
1,183 words in judgment
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The bottom line

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A Kenyan employer who couldn't produce employment records lost an unfair termination claim because the law makes employers responsible for keeping those records.

What this practically means

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Executive summary

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The Claimant, employed from about 2007 as a supervisor earning Kshs.9,800 per month, claimed his services were wrongfully and unfairly terminated on 20th May 2018 without notice, service pay or terminal benefits. He sought three months' salary in lieu of notice, service pay for 8 years, terminal benefits and damages for unfair termination. The Respondent denied the claim, asserting the Claimant was initially a casual labourer of Stephen Mutai M'Imanyara, later paid through the Respondent, and absconded duty from 1st April 2015, relying on a termination letter addressed to the County Labour Office, Meru. Parties agreed on determination by written submissions. The court framed four issues: whether there was a termination; whether it was wrongful, unfair and unlawful; entitlement to relief; and costs. Finding both versions unproven with precision, the court applied the balance of probabilities and preferred the Claimant's account. The employer, as the senior partner and custodian of employment records under Sections 9 and 10 of the Employment Act, 2007, failed to involve the Claimant or produce records, which burdened the Respondent. The court held the termination unfair and awarded one month's salary in lieu of notice (Kshs.9,800) and two months' salary as compensation for unlawful termination (Kshs.19,600), totalling Kshs.29,400. Service pay and terminal benefits were not awarded. Each party was ordered to bear their own costs. Judgment delivered at Nyeri on 19th July 2021 by D.K.Njagi Marete, Judge.

Key legal issues

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01

Whether there was a termination of the Claimant's employment and whether it was unfair

Holding

The Claimant's version was the more probable on a balance of probabilities; the Respondent, as employer, failed to produce employment records or substantiate the alleged abscondment, so the termination was unfair.

Reasoning

The court found the parties' versions conflicting and applied the balance of probabilities test. The employer had greater latitude to involve the Claimant in resolving the termination issue but did not do so. Sections 9 and 10 of the Employment Act place custody of employment records on the employer; failing to produce them burdened the Respondent. The Claimant's credible query why no notice was addressed to him weighed in his favour.

p. 2
02

Relief for unfair termination

Holding

One month's salary in lieu of notice and two months' salary as compensation for unlawful termination were awarded; other heads claimed (service pay, terminal benefits) were not awarded.

Reasoning

Having found the termination unfair, the court exercised discretion to award notice pay and limited compensation of two months' salary, notably awarding less than the three months' notice pay claimed, and declining to award service pay or terminal benefits.

p. 3

Legal principles established

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  • The employer, as custodian of employment records under Sections 9 and 10 of the Employment Act, bears the burden of producing those records where termination is in dispute.

Court orders

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  1. 1.One (1) month's salary in lieu of notice of Kshs.9,800.00
  2. 2.Two (2) months' salary as compensation for unlawful termination of employment of Kshs.19,600.00
  3. 3.Total award of Kshs.29,400.00
  4. 4.The parties shall bear their costs of the claim

Authorities

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Legislation

  • Employment Act, 2007Sections 9 and 10

Cases cited (1)

  • Mutunga Nyamai v Chancery Restaurant Limited T/A China Plate
    (2020) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance statement of claim)

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, "Protasio Kinoti v Majani Gardens Limited [2021] KEELRC 1199 (KLR)", Case Analysis (2021). Statement of Claim dated 28th April, 2018 (Nyeri ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1199/eng@2021-07-19

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