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ELRCAllowedNot stated in judgment· [2023] KEELRC 143 (KLR)

Geni v Otuto (Cause 1124 of 2018) [2023] KEELRC 143 (KLR)

Employment and Labour Relations Court
26 January 2023
840 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 awarded a driver over Kshs 304,000 because his employer dismissed him without notice, reasons, or final pay.

What this practically means

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Executive summary

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This was an employment claim filed by a lorry driver seeking unpaid salary for November and December 2017, house allowance, overtime, holiday pay, rest day pay, one month's notice pay, compensation for unfair termination, a Certificate of Service, interest and costs. The respondent, despite service of summons and the Statement of Claim, neither entered appearance nor filed a defence, and the matter proceeded by formal proof. The claimant testified as C.W.1, relying on his witness statement dated May 10, 2018. He stated that he was employed on October 24, 2017 as a lorry driver on a salary of Kshs 20,000 per month, driving lorry KCG 397Y. On December 22, 2017 he transported cargo to Kisii and parked the lorry at the respondent's rural home in Nyamira County on instructions. He was never paid; the respondent's phone went unanswered, and after Christmas he learned the truck was being driven by someone else. The court evaluated the uncontroverted evidence and found the claim proved on a balance of probabilities, holding that the termination was unlawful and unfair for want of notice to show cause or any reason, in violation of Sections 36, 41, 43 and 45 of the Employment Act, 2007. Applying Section 49(1)(c) and 4 and the precedent of Abisalom Ajusa Magomere and Kenya Nut Company Limited [2014] eKLR, the court awarded four months' salary (Kshs 160,000) as compensation, considering the inhumane manner of termination, plus notice pay, the unpaid salary, house allowance, overtime, holiday and rest day pay, totaling Kshs 304,960, with interest at court rates, costs, and an order that the respondent issue a Certificate of Service within 30 days.

Key legal issues

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01

Unfair termination

Holding

The termination was unlawful and unfair as it was effected without notice to show cause or any reason given, violating Sections 36, 41, 43 and 45 of the Employment Act, 2007.

Reasoning

The claimant's uncontroverted evidence at formal proof showed he was employed as a lorry driver, parked the lorry at the respondent's home on instructions, was never paid, and later learned his truck was driven by another person. The respondent did not enter appearance or file a defence. The court found the claim proved on a balance of probabilities and applied the cited precedent.

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02

Quantum of compensation for unfair dismissal

Holding

The claimant, having served only two months, was awarded the equivalent of four months' salary (Kshs 160,000) under Section 49(1)(c) and 4 of the Act, aggravated by the inhumane manner of termination during the Christmas season.

Reasoning

The court considered that the claimant lost employment for no reason assigned, did not contribute to the dismissal, received no terminal benefits or notice, suffered loss of means of support during the festive season and for school fees, and received no Certificate of Service to obtain alternative employment. The similarity of the case to Abisalom Ajusa Magomere and Kenya Nut Company Limited was also considered.

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03

Unpaid terminal benefits

Holding

The claimant was awarded all terminal benefits claimed: unpaid salary for November and December 2017, house allowance, overtime, holiday pay and rest day pay, totaling Kshs 124,960.

Reasoning

The claimant testified without contradiction that he was not paid for November and December 2017, was not accommodated nor paid house allowance, and worked two rest days and two holidays without extra pay. The uncontroverted evidence was accepted, and the court awarded the full amounts as prayed.

p. 2

Legal principles established

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  • Termination without notice to show cause or any reason given violates Sections 36, 41, 43 and 45 of the Employment Act, 2007 and is unlawful and unfair.
  • An employee terminated for no reason assigned, who did not contribute to the dismissal and received no terminal benefits, is entitled to compensation under Section 49(1)(c) and 4 of the Employment Act.
  • Uncontroverted evidence at formal proof is proved on a balance of probabilities if the court is satisfied by careful evaluation.

Court orders

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  1. 1.Kshs 160,000 in compensation for the unlawful and unfair dismissal
  2. 2.Kshs 20,000 in lieu of one month notice
  3. 3.Kshs 40,000 being unpaid November and December 2017 salary
  4. 4.Kshs 9,000 house allowance
  5. 5.Kshs 60,579 overtime
  6. 6.Kshs 3,076.9 being unpaid holiday pay
  7. 7.Kshs 12,307.7 for unpaid rest days
  8. 8.Total award of Kshs 304,960
  9. 9.Interest at Court rates from date of judgment till payment in full
  10. 10.Costs of the suit to the claimant
  11. 11.The respondent to provide Certificate of Service to the claimant within 30 days of judgment

Authorities

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Legislation

  • Employment ActSections 36, 41, 43 and 45
  • Employment ActSection 49(1)(c) and 4

Cases cited (1)

  • Abisalom Ajusa Magomere and Kenya Nut Company Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and terminal benefits)

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, "Geni v Otuto (Cause 1124 of 2018) [2023] KEELRC 143 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/143/eng@2023-01-26

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