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ELRCPartially AllowedCause No 1417 of 2017· [2023] KEELRC 154 (KLR)

Mulatya v Kenjap Company Limited (Cause 1417 of 2017) [2023] KEELRC 154 (KLR)

Employment and Labour Relations Court of Kenya
31 January 2023
4,694 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a gardener's dismissal unfair because the employer could not prove a valid reason or give him a hearing, awarding him compensation and unpaid wages.

What this practically means

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Executive summary

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The Claimant, engaged in February 2016 as a Gardener at the Respondent's client Sameer Africa's grounds, sued for a declaration that his dismissal was unlawful and unfair, Kshs 224,741, a certificate of service, costs and interest. The Respondent denied the employment relationship, contending he was a casual labourer paid daily, and alleged theft and bhang peddling. The court framed three issues: existence of employment, how it determined, and fairness of termination. Relying on an unchallenged April 2017 pay slip showing basic pay and the Respondent's failure to produce a payroll, daily work register or service contract, the court found the Claimant was a monthly-paid employee, not a casual. Although the Respondent's witness suggested the Claimant simply never returned to work, its pleaded response admitted termination; parties being bound by their pleadings, the court found the Respondent terminated the employment. The Respondent, having denied terminating the Claimant, led no evidence of reasons; its unparticularised allegations of criminal misconduct were unsupported by any witness or document. The court held the legal burdens under sections 43 and 45 of the Employment Act undischargeable by mere assertions, and that the termination was substantively unfair; the witness's admission that no hearing was accorded rendered it procedurally unfair under section 41. The court awarded a declaration of unfair termination, eight months' compensation (Kshs 87,637.70), unpaid house allowance (Kshs 26,291.25), salary underpayments measured against the 2015 Wages Order (Kshs 47,275.60), a certificate of service within 30 days, costs, and interest at court rates. Judgment was delivered by Ocharo Kebira, J, on January 31, 2023.

Key legal issues

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01

Whether the Claimant was a permanent employee or a casual labourer

Holding

The Claimant was a monthly-paid employee, not a casual; the Respondent failed to produce payroll, daily work register or service provision documents, and the pay slip issued by the Respondent evidenced a monthly employment

Reasoning

The Claimant tendered an April 2017 pay slip whose authenticity the Respondent never challenged. Its items, including basic pay, demonstrated a permanent monthly engagement. The Respondent, which would naturally hold documents such as a payroll and daily work register, produced none, and its pleadings and witness statement were inconsistent on the nature of the engagement.

p. 5
02

Whether the Respondent terminated the Claimant's employment

Holding

Yes; the Respondent's own response to the statement of claim admitted termination, and it could not depart from its pleadings through inconsistent evidence

Reasoning

Though the Respondent's witness suggested the Claimant simply never returned to work, the Respondent's pleaded response expressly asserted that termination was for a justifiable reason and was fair. Parties are bound by their pleadings, and the court could not allow the Respondent to change the character of its case by evidence running counter to them.

p. 6
03

Whether the termination was substantively fair

Holding

It was not; the Respondent failed to prove any valid and fair reason for the termination

Reasoning

Section 43 placed the legal burden of proving the reason(s) for termination on the Respondent. Having taken the position that it did not terminate the employment, it led no evidence of reasons. The unparticularised allegations of theft and bhang peddling were unsupported by any witness or documentary evidence, and mere assertions cannot discharge a legal burden.

p. 7
04

Whether the termination was procedurally fair

Holding

It was not; the Claimant was verbally dismissed without notification, hearing or consideration of representations

Reasoning

Section 41 is mandatory and requires notification of grounds, an opportunity to be heard with accompaniment, and consideration of representations. The Respondent placed no evidence on the procedure followed; its witness admitted under cross-examination that the Claimant was not accorded a hearing. The Claimant's unrebutted evidence was of verbal dismissal without a chance to defend himself.

p. 7
05

Entitlement to underpayment, house allowance, compensation and certificate of service

Holding

The Claimant was awarded salary underpayments of Kshs 47,275.60, unpaid house allowance of Kshs 26,291.25, eight months' compensation of Kshs 87,637.70, and a certificate of service

Reasoning

The 2015 Wages Order fixed a gardener's minimum basic salary at Kshs 10,954.70 exclusive of house allowance; section 48 of the Labour Institutions Act imports such rates into the contract and section 48para 5 allows recovery of the shortfall. Section 31 obliged the employer to pay house allowance, which it admitted it never did. Compensation was discretionary, fixed at eight months given the unfairness and the Respondent's evasive conduct.

p. 9

Legal principles established

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  • Where an employer pleads termination in its response, it cannot at trial resile from that admission by leading evidence that there was no termination
  • The employer bears the legal burden under section 43 of the Employment Act to prove the reason(s) for termination, failing which the termination is unfair under section 45; mere assertions cannot discharge this burden
  • Section 41 procedural fairness comprises notification, hearing and consideration components, all of which must be proved by the employer
  • A wages order fixing minimum remuneration constitutes a term of employment that cannot be contracted out; the employer is statutorily obliged to adjust pay to the wages order
  • An employee's right to a certificate of service under section 51 of the Employment Act is inviolable

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was unfair
  2. 2.Compensation pursuant to section 49[1][c] of the Employment Act, Kshs 87,637.70
  3. 3.Unpaid house allowance, Kshs 26,291.25
  4. 4.Salary underpayment, Kshs 47,275.60
  5. 5.The Respondent directed to issue the Claimant with a certificate of service within 30 days of the judgment
  6. 6.Costs of the suit to the Claimant
  7. 7.Interest on the awarded sums at court rates from the date of judgment till full payment

Authorities

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Legislation

  • Employment Actsection 9
  • Employment Actsection 37
  • Employment Actsection 31
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 49[1][c]
  • Employment Actsection 51
  • Labour Institutions Actsection 48, section 48[5]
  • Regulation of Wages [General][Amendment] Order 2015minimum wage for a Gardener
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (5)

  • Christoper Baraza Wasike v Pemco Agencies Limited
    [2018] eKLR
  • Irungu Githae v Mutheka Farmer's Cooperative Society Limited
    [2019] eKLR
  • Malawi Railways Ltd v Nyasulu
    [1998] MWSC 3
  • Republic v Chairman Public Procurement Administrative Review Board & another Ex parte Zapkass Consulting and Training Limited & another
  • Aristide Marage Nyangau v Lavington Security Limited
    [2021] eKLR
Jurisdiction invoked
Employment Act, 2007 and Labour Institutions Act (first-instance employment claim; no specific constitutional jurisdiction invoked apart from Article 159(2)(d) and Article 48 on delivery of judgment)

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, "Mulatya v Kenjap Company Limited (Cause 1417 of 2017) [2023] KEELRC 154 (KLR)", Case Analysis (2023). Cause No 1417 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/154/eng@2023-01-31

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