Boaz Akaliche Shikuku v Prime Steel Mills Limited [2021] KEELRC 1682 (KLR)
The bottom line
#A Kenyan court ruled a factory worker was unfairly dismissed after being locked out over the holidays, and ordered his employer to pay damages.
What this practically means
#Executive summary
#Key legal issues
#Date of commencement of employment
Employment commenced on 30th April 2014, not 2009, as the N.S.S.F. statement showed the first contribution by the Respondent on that date.
The Claimant asserted employment from 2009 but produced no document or witness to support it. His N.S.S.F. account showed prior employment with other entities and first contribution by the Respondent in April 2014. No successor-employer relationship among the entities was established, so employment was fixed at 30th April 2014.
Whether the Claimant deserted or was dismissed
The Claimant did not desert; he was discontinued by the Respondent after finding his name on a notice board with instructions not to resume duty.
The Respondent pleaded desertion for 7 days, but its own witness admitted the business was closed for that period. No evidence of calls or letters recalling the Claimant or inviting him to a disciplinary process was availed. The Claimant's account of the notice board was the more believable version.
Unfair termination and burden of proof
Termination was unfair; the Respondent failed to discharge its burden of justifying the termination.
Sections 43, 45 and 47(5) of the Employment Act place the burden of justifying termination on the employer. The Respondent led no evidence of valid reasons or a fair procedure - no disciplinary hearing or notice. The Claimant, with a clean record of about 20 months' service and paid nothing on termination, established unfair termination.
Status of employment - casual or regular
The Claimant was not in casual employment or on 3-month renewable contracts; his pay slip showed a monthly gross salary.
The Respondent variously argued casual employment and 3-month renewable contracts. The witness admitted the pay slip indicated monthly pay, and there was no evidence of the daily rate of Kshs. 690 claimed or an hourly rate. The Court found regular employment entitling the Claimant to statutory benefits.
Quantum of compensation
Compensation of 2 months' salary (Kshs. 23,248/23,348) and one month's notice (Kshs. 11,624) awarded, based on the December 2015 gross salary of Kshs. 11,624.
The Claimant served about 20 months with no disciplinary record, was not at fault, and received nothing on termination, but did not merit the maximum 12 months' compensation given his short service. Award calibrated at 2 months' salary plus one month's notice.
Legal principles established
#- The employer bears the burden of justifying termination of employment under Sections 43, 45 and 47(5) of the Employment Act.
- An employee absent when the employer's business is shut cannot be treated as a deserter.
- Conversion from casual to regular employment entitles the employee to statutory annual leave.
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay the Claimant compensation at Kshs. 23,348; notice at Kshs. 11,624; and annual leave pay at Kshs. 15,647 – total Kshs. 50,619
- 3.Certificate of Service to issue to the Claimant
- 4.Costs to the Claimant
- 5.Interest allowed as prayed, but from the date of Judgment
- Jurisdiction invoked
- First-instance jurisdiction of the Employment and Labour Relations Court under the Employment Act 2007 (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boaz Akaliche Shikuku v Prime Steel Mills Limited [2021] KEELRC 1682 (KLR)", Case Analysis (2021). Cause No 1513 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1682/eng@2021-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.