Kema Investment Ltd v Oroo (Employment and Labour Relations Appeal E024 of 2021) [2023] KEELRC 264 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved an employment relationship with the appellant (as opposed to KEMA (EA) Limited)
The respondent proved on a balance of probabilities that he was the appellant's employee; the appellant did not contest issuing the appointment letter of July 23, 2007 and a pay slip identified the appellant as its issuer
The court noted the letter of appointment dated July 23, 2007 signed for KEMA Investment Limited appointing the respondent as a driver, corroborated by the respondent's testimony and a pay slip naming the appellant as issuer. The appellant called no oral evidence and did not adduce anything to contest its joinder or show that KEMA Investment Limited and KEMA (EA) Limited were distinct entities. The finding of the learned Magistrate on employment was therefore left undisturbed.
Whether leave pay could be awarded for the entire 10 years of service
No - the award for 10 years was set aside and substituted with leave pay for 18 months only, quantified at Kshs 26,017.84
Section 28(4) of the Employment Act caps recoverable leave at 18 months from the end of the leave-earning period. Section 74(f) obliges the employer to keep leave records; the appellant produced none. Since the respondent exited on June 12, 2018, his claim dating back to July 2007 until January 2017 was unsustainable, and only leave for the 18 months preceding exit could be recovered.
Legal principles established
#- An employer must keep written records of an employee's annual leave entitlement and days taken and due; absent such records, leave pay is recoverable only for the 18 months preceding exit, per sections 74(f) and 28(4) of the Employment Act
- A first appellate court must re-evaluate, re-analyse and re-consider the evidence and reach its own conclusions while making allowances for not having seen or heard the witnesses
Court orders
#- 1.The award for annual leave for 10 years is set aside and substituted with an award of leave for 18 months, revised downwards from Kshs 247,790.00 to Kshs 26,017.84
- 2.Interest on the amount of Kshs 26,017.84 at court rates from the date of the judgment until payment in full
- 3.Each party to bear their own costs in this Court and at the trial Court
- On appeal from
- Chief Magistrate's Court at Milimani (ELRC)
- CMEL No 929 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Chief Magistrate's Court (ELC/ELRC subordinate employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kema Investment Ltd v Oroo (Employment and Labour Relations Appeal E024 of 2021) [2023] KEELRC 264 (KLR)", Case Analysis (2023). CMEL No. 929 of 2019 (Appeal; Memorandum of Appeal dated June 10, 2019, amended February 25, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/264/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.