Regina Chepkirui Maritim v Mogogosiek Tea Factory Co Ltd [2022] KEELRC 1025 (KLR)
The bottom line
#A Kenyan court awarded a tea factory worker only 28 days' notice pay because she couldn't prove her seasonal contract was unfairly terminated rather than expired.
What this practically means
#Executive summary
#Key legal issues
#Nature of the claimant's employment - permanent or seasonal
The claimant worked for the respondent from at least 10/12/2008; she was initially a permanent employee until February 2011, and thereafter engaged on 3-month fixed-term seasonal contracts punctuated by breaks until December 2017, consistent with Clause 22 of the CBA.
Documentary evidence - staff identification card dated 10/12/2008, pay slips and NSSF statement - proved the claimant worked earlier than 2016. The respondent, custodian of employment records, produced only one contract dated 1/11/2016 and a few pay slips, amounting to deliberate concealment. The NSSF statement showed continuous work to February 2011 and seasonal engagements thereafter. Seasonal contract employment accorded with the law and Clause 22 of the CBA.
Whether the separation was an unlawful dismissal or automatic expiry of contract
The claimant failed to prove wrongful dismissal; her last seasonal contract expired automatically on lapse of the agreed period.
Under section 47(5) of the Employment Act, the burden of proving unfair or wrongful dismissal lies on the employee. The claimant did not rebut that she was on a 3-month seasonal contract at separation, called no supporting witness, and did not explain the circumstances of the termination. The court therefore believed the employer's evidence that the contract was seasonal and expired automatically upon lapse of the agreed term.
Entitlement to reliefs
Only 28 days' salary in lieu of notice (Kshs 22,095) was payable under Clause 22 of the CBA; all other reliefs were declined.
Clause 22 of the CBA entitled a seasonal employee to 28 days' notice or 28 days' pay in lieu of notice upon termination after three consecutive months' continuous service. Having served to the end of the 3-month seasonal contract, the claimant was awarded 28 days' salary in lieu of notice equal to her last salary of December 2017. Reinstatement, compensation, general damages, leave and service pay were declined for the reasons above.
Legal principles established
#- Employment records are in the custody of the employer under sections 10(7) and 74 of the Employment Act, and the employer ought to produce them to disprove an employee's allegation.
- Deliberate concealment of material employment records by the employer is not healthy for the administration of justice.
- The burden of proving unfair or wrongful dismissal lies upon the employee under section 47(5) of the Employment Act.
Court orders
#- 1.Judgment entered for the claimant for Kshs 22,095 being 28 days' salary in lieu of notice, less statutory deductions
- 2.Costs of the suit awarded to the claimant
- 3.Interest on the award at court rate from the date of filing the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Regina Chepkirui Maritim v Mogogosiek Tea Factory Co Ltd [2022] KEELRC 1025 (KLR)", Case Analysis (2022). Cause No. 92 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1025/eng@2022-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.