Mulatya v Kenjap Company Limited (Cause 1417 of 2017) [2023] KEELRC 154 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant was a permanent employee or a casual labourer
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
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.
Whether the Respondent terminated the Claimant's employment
Yes; the Respondent's own response to the statement of claim admitted termination, and it could not depart from its pleadings through inconsistent evidence
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.
Whether the termination was substantively fair
It was not; the Respondent failed to prove any valid and fair reason for the termination
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.
Whether the termination was procedurally fair
It was not; the Claimant was verbally dismissed without notification, hearing or consideration of representations
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.
Entitlement to underpayment, house allowance, compensation and certificate of service
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
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.
Legal principles established
#- 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
#- 1.A declaration that the termination of the Claimant's employment was unfair
- 2.Compensation pursuant to section 49[1][c] of the Employment Act, Kshs 87,637.70
- 3.Unpaid house allowance, Kshs 26,291.25
- 4.Salary underpayment, Kshs 47,275.60
- 5.The Respondent directed to issue the Claimant with a certificate of service within 30 days of the judgment
- 6.Costs of the suit to the Claimant
- 7.Interest on the awarded sums at court rates from the date of judgment till full payment
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.