Rael Namasa Likhayo v Lake Fill Station (Cause 70 of 2018) [2022] KEELRC 591 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Existence of employment relationship
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
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.
Unfair termination
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
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.
Compensation quantum
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
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.
Accrued leave claim
Claim for Kshs 148,500/- in accrued leave declined for lack of evidential foundation, having regard to section 28(4) of the Employment Act
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.
Legal principles established
#- Where there is no primary document to show an employment relationship, the Court may rely on secondary records such as NSSF statements
Court orders
#- 1.Declaration that the Respondent unfairly terminated the Claimant's employment
- 2.Award of compensation equivalent of 5-months gross wages: Kshs 49,500/-
- 3.Award of 1-month pay in lieu of notice: Kshs 9,900/- (total Kshs 59,400/-)
- 4.Claimant to have costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.