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ELRCPartially AllowedMemorandum of claim dated January 17, 2018 (number not stated in judgment)· [2023] KEELRC 67 (KLR)

Changoek v Redshark Limited (Cause 76 of 2018) [2023] KEELRC 67 (KLR)

Employment and Labour Relations Court
24 January 2023
HWHellen Wasilwa
2,543 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent from April 2014 as a casual labourer/security guard on contracts renewed from time to time and earning Kshs 12,070, claimed he was verbally dismissed in November 2017 on the pretext of an expired contract and business scaling down, without notice or disciplinary process. He sought a declaration of unlawful termination, severance pay, notice pay, compensation, holiday, leave and weekend pay, plus costs and interest. The Respondent denied unfair termination, contending the contract expired by effluxion of time and that the Claimant wrote a resignation letter dated November 11, 2017, and that all dues under the applicable Agricultural Industry Wage Orders were paid. The Claimant denied authoring the resignation letter, which was unsigned. The court found the resignation letter's authenticity could not be ascertained and that the Respondent did not exhibit the contract alleged to have expired, so neither defence was established. It held the termination was without fair hearing or valid reasons and therefore unfair. However, the Claimant failed to prove underpayment against the prevailing wages orders, and severance pay was unwarranted as he was not declared redundant. The court awarded one month's salary in lieu of notice (Kshs 12,070) and eight months' salary as compensation for unfair termination (Kshs 96,560), totalling Kshs 108,630 less statutory deductions, with costs of the suit to the Claimant plus interest at court rates from the date of judgment. Judgment was delivered by Hon. Lady Justice Hellen Wasilwa on January 24, 2023.

Key legal issues

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01

Whether the Claimant's employment was unfairly terminated or ended by effluxion of time/resignation

Holding

Termination was unfair; neither resignation nor contract expiry was proved

Reasoning

The Claimant denied authoring the resignation letter, which was unsigned and of unverifiable authenticity. The Respondent did not exhibit the contract alleged to have expired, so its terms and expiry date were unknown. With neither defence established, the court found the termination was without valid reasons or fair hearing.

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02

Whether the Claimant proved underpayment and entitlement to holiday, leave, weekend and severance pay

Holding

Not proved; only notice pay and 8 months' compensation awarded

Reasoning

The Claimant exhibited payslips showing salary payments but no evidence of underpayment against the prevailing wages orders. Severance pay was unwarranted as he was not declared redundant. Overtime appeared on payslips as OT1 and OT2 entries. The court therefore limited remedies to notice pay and compensation.

p. 5

Legal principles established

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  • Where a claimed resignation letter is denied and unsigned, and no contract is exhibited to prove expiry, the employer bears the consequence that the termination lacks valid reason and fair procedure
  • A party alleging underpayment must prove it against the applicable wage orders

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Kshs 12,070
  2. 2.Payment of 8 months' salary as compensation for unfair termination (8 x 12,070 = 96,560), total Kshs 108,630 less statutory deductions
  3. 3.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 47(5)
  • Agricultural Industry Wage Orders

Cases cited (6)

  • Oshwal Academy (Nairobi) & Another v Indu Vishwanath
    [2015] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • Amatsi Water Services Company Limited v Francis Shire Chachi
    [2018] eKLR
  • National Water Conservation & Pipeline Corporation v Jayne Kanini Mwanza
    Civil Appeal No 178 of 2014 (UR)
  • Bernard Wanjohi Muriuki v Kirinyaga Water And Sanitation Company Limited & Another
    [2012] eKLR
  • Margaret A Ochieng v National Water conservation and Pipeline Corporation
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act; claim for unfair termination)

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, "Changoek v Redshark Limited (Cause 76 of 2018) [2023] KEELRC 67 (KLR)", Case Analysis (2023). Memorandum of claim dated January 17, 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/67/eng@2023-01-24

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