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ELRCPartially AllowedStatement of Claim dated 11th September 2017 (Employment and Labour Relations Court, Mombasa)· [2022] KEELRC 947 (KLR)

William Matakataka Makutano v Mombasa Maize Millers [2022] KEELRC 947 (KLR)

Employment and Labour Relations Court
27 January 2022
ANAgnes Kitiku Nzei
3,343 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that barring a worker from the premises after his criminal acquittal, without notice or a hearing, was unfair dismissal — awarding him Ksh.180,000.

What this practically means

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Executive summary

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The Claimant, a motor vehicle electrician, sued Mombasa Maize Millers Limited alleging unfair termination of employment. He was employed from October 2008 without a written contract at Ksh.18,000 monthly. In January 2012, at the instigation of the Respondent's Workshop Manager, he was arrested and charged with stealing by servant (two motor vehicle batteries and a winder valued at Ksh.25,000). He was acquitted on 12th June 2015, and when he reported to work on 13th June 2015 he was barred by security guards and told he was no longer an employee. The Respondent denied employing him, pleading an outsourcing agreement with Ready Consultancy Company Limited, which was enjoined as Third Party. The Third Party denied liability, asserting the Claimant remained the Respondent's employee and was never handed over. The court framed four issues and found, on the evidence, that the Claimant was the Respondent's employee from 2008; that he was never an employee of the Third Party, the outsourcing agreements not transferring existing employees and the Respondent producing no handover list; and that his employment was terminated on 13th June 2015 without notice or hearing, in breach of the mandatory requirements of Sections 41 and 45 of the Employment Act. His non-reporting during the criminal trial did not amount to absconding. Judgment was entered for the Claimant against the Respondent for Ksh.180,000 (December 2011 salary, one month's notice pay, and eight months' salary as compensation), with costs and interest, and the Respondent was directed to issue a Certificate of Service within thirty days. The Third Party was found not liable.

Key legal issues

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01

Whether the Claimant was the Respondent's employee

Holding

The Claimant proved on a balance of probability that he was employed by the Respondent from 2008 at a monthly salary of Ksh.18,000

Reasoning

The Claimant was arrested and prosecuted at the instigation of the Respondent for stealing by servant, property which came to his possession by virtue of his employment. The Respondent's own witness confirmed he was a workmate instructed to arrest him, and the Third Party's witness confirmed he was never handed over to the Third Party. The Respondent did not rebut the evidence of the unsigned salary book or the lack of a written contract.

p. 4
02

Whether the Claimant was an employee of the Third Party

Holding

The Claimant was never at any time an employee of the Third Party, which is not liable

Reasoning

The outsourcing agreements did not provide that the Respondent's employees would become employees of the Third Party; they required the contractor to provide its own employees with identification cards. The Respondent never produced a list of employees taken over by the Third Party, and unrebutted evidence showed the Claimant was never handed over and that the Respondent managed and paid him.

p. 4
03

Whether the termination was unfair

Holding

The termination was both unprocedural and unfair and was declared so

Reasoning

The effective date of termination was 13th June 2015 when the Respondent denied the Claimant entry at its gates upon his acquittal. The Respondent complied with neither the mandatory procedural requirements of Section 41 of the Employment Act nor did it prove a valid reason as required by Section 45. The period of non-reporting during the criminal trial did not amount to absconding or termination.

p. 5
04

Entitlement to reliefs

Holding

The Claimant was awarded December 2011 salary, one month's notice pay, eight months' compensation and a certificate of service

Reasoning

The claims for December 2011 salary and lack of notice were unrebutted. Compensation of eight months' salary was awarded for unfair termination, and a Certificate of Service was ordered under Section 51(1) of the Employment Act to issue within thirty days.

p. 5

Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, explain the reasons to the employee in a language the employee understands and hear and consider any representations - compliance is mandatory
  • Termination is unfair where the employer fails to prove a valid reason and that it acted in accordance with justice and equity
  • An employee who does not report to duty pending the outcome of a criminal prosecution instituted by the employer is neither deemed to have absconded nor terminated; the employment relationship subsists

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair
  2. 2.Judgment for the Claimant against the Respondent of Ksh.18,000 being salary for December 2011
  3. 3.Ksh.18,000 being one month salary in lieu of notice
  4. 4.Ksh.144,000 being eight months' salary as compensation for unfair termination (total Ksh.180,000)
  5. 5.Costs of the suit to the Claimant with interest from the date of judgment until payment in full
  6. 6.Respondent directed to issue the Claimant with a Certificate of Service pursuant to Section 51(1) of the Employment Act 2007 within thirty days of the judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) or (4)
  • Employment ActSection 45
  • Employment Act 2007Section 51(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment 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, "William Matakataka Makutano v Mombasa Maize Millers [2022] KEELRC 947 (KLR)", Case Analysis (2022). Statement of Claim dated 11th September 2017 (Employment and Labour Relations Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/947/eng@2022-01-27

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