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ELRCPartially AllowedKisumu Cause No. 70 of 2018 (not expressly stated in judgment; related Causes cited are Kisumu Causes No. 69, 71 and 72 of 2018)· [2022] KEELRC 591 (KLR)

Rael Namasa Likhayo v Lake Fill Station (Cause 70 of 2018) [2022] KEELRC 591 (KLR)

Employment and Labour Relations Court
9 March 2022
819 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer unfairly sacked a worker without notice or hearing, but her leave claim failed because she had no evidence proving she was ever denied leave.

What this practically means

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Executive summary

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Rael Namasa Likhayo sued Lake Fill Station alleging unfair termination of employment and breach of contract. The Respondent denied the employment relationship, asserting the Claimant worked for Lakefeeds, and contended that a pending criminal case at Maseno prevented her clearance. The Court admitted the evidence of Fred Namwami Mola in Kisumu Cause No. 69 of 2018 and the Claimant's witness statements without objection. On the evidence, the Court held that where no primary document exists, secondary records may prove employment, and relying on the Claimant's NSSF Provisional Member Statement of Account, her testimony and section 10(7) of the Employment Act, 2007, found she was employed by the Respondent from 5 February 2002. The charge sheet corroborated that the Claimant was dismissed on 28 November 2017, apparently prompted by allegations of theft. Applying sections 35(1) and 41 of the Employment Act, the Court found the Respondent terminated the employment without written notice and without affording the Claimant a hearing, rendering the termination unfair. Considering about 15 years of service and the pending criminal charge on the same facts, the Court awarded the equivalent of five months' gross wages (Kshs 49,500/-) as compensation and one month's pay in lieu of notice (Kshs 9,900/-), totalling Kshs 59,400/-. The claim for Kshs 148,500/- in accrued leave was refused for lack of evidential foundation under section 28(4). The Claimant was awarded costs. Judgment delivered at Kisumu on 9 March 2022 by Radido Stephen, Judge.

Key legal issues

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01

Existence of employment relationship

Holding

The Court found the Claimant was employed by the Respondent from 5 February 2002, relying on the NSSF Provisional Member Statement of Account, oral testimony and section 10(7) of the Employment Act

Reasoning

The Respondent denied employing the Claimant, asserting she worked for Lakefeeds. The Claimant produced a Provisional NSSF Member Statement of Account showing contributions by the Respondent. The Court held that where no primary document exists, secondary records may be relied on, and read together with the oral testimony and section 10(7) of the Employment Act, 2007, found employment from 5 February 2002.

p. 1
02

Unfair termination

Holding

Termination without written notice and without affording the employee an opportunity to be heard was unfair under sections 35(1) and 41 of the Employment Act

Reasoning

The Claimant testified she was told on 28 November 2017 that her services were no longer required, without notice or hearing. The charge sheet corroborated dismissal on 28 November 2017 following allegations of theft. The Court found it more probable the Respondent terminated the employment without written notice and before any representations, contrary to sections 35(1) and 41.

p. 2
03

Compensation quantum

Holding

Equivalent of 5-months gross wages (Kshs 49,500/-) awarded given about 15 years of service and the pending criminal charge on the same facts

Reasoning

The Court considered the length of service of about 15 years and the fact that the Claimant still faced a criminal charge on the same facts leading to the separation, and concluded that 5 months' gross wages at Kshs 9,900/- per month was appropriate compensation.

p. 2
04

Accrued leave claim

Holding

Claim for Kshs 148,500/- in accrued leave declined for lack of evidential foundation, having regard to section 28(4) of the Employment Act

Reasoning

The Claimant sought leave pay for 15 years but did not disclose whether she applied for leave and was denied, or whether leave accrued with the Respondent's approval. The Court held the head of claim lacked a proper evidential foundation and, considering section 28(4) of the Employment Act, 2007, declined to allow it.

p. 2

Legal principles established

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  • Where there is no primary document to show an employment relationship, the Court may rely on secondary records such as NSSF statements

Court orders

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  1. 1.Declaration that the Respondent unfairly terminated the Claimant's employment
  2. 2.Award of compensation equivalent of 5-months gross wages: Kshs 49,500/-
  3. 3.Award of 1-month pay in lieu of notice: Kshs 9,900/- (total Kshs 59,400/-)
  4. 4.Claimant to have costs

Authorities

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Legislation

  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 35(1)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 28(4)
Jurisdiction invoked
Original jurisdiction under the Employment and Labour Relations Court Act over unfair termination and breach of contract claims under the Employment Act, 2007

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, "Rael Namasa Likhayo v Lake Fill Station (Cause 70 of 2018) [2022] KEELRC 591 (KLR)", Case Analysis (2022). Kisumu Cause No. 70 of 2018 (not expressly stated in judgment; related Causes cited are Kisumu Causes No. 69, 71 and 72 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/591/eng@2022-03-09

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