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ELRCPartially AllowedMombasa ELRC Appeal arising from Mombasa CMC-ELR Case No. 130 of 2021· [2023] KEELRC 431 (KLR)

Buyoywa v Nobken General Supplies (Appeal E049 of 2022) [2023] KEELRC 431 (KLR)

Employment and Labour Relations Court
16 February 2023
ANAgnes Kitiku Nzei
2,145 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court in Mombasa ruled that an employer who keeps no written contract cannot deny a worker's employment, and must compensate unfairly fired staff.

What this practically means

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Executive summary

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The Appellant appealed against a judgment of the Chief Magistrate's Court at Mombasa (CMC-ELR Case No. 130 of 2021) delivered on 16th June 2022, which the court described as inconclusive, in a claim for unfair termination of employment and associated dues. The Appellant alleged he was employed as a driver from 1st January 2014 at ksh 350 per day and was orally terminated on 2nd November 2018 because of ill health following a work-related road accident of 14th September 2017. The Respondent denied ever employing him, asserting he was a friend who occasionally helped with deliveries. On appeal, the court, sitting as a first appellate court, re-evaluated the evidence per Selle v Associates Motor Boat Co. It found an employment relationship existed from 2017 (the 2015-2016 period having been spent with Reef Hotels (Management) Limited) until 2nd November 2018, applying section 10(7) of the Employment Act to hold that the employer's failure to produce a written contract could not disadvantage the employee. It found the Respondent terminated the Appellant's employment without complying with sections 41, 35(1)(c) and 45(4)(b) of the Employment Act, rendering the termination unfair. The trial court's judgment was set aside and substituted with judgment for the Appellant of ksh 84,000 (eight months' salary as compensation) plus ksh 10,500 in lieu of notice, subject to statutory deductions under section 49(2). Claims for underpayment, house allowance, leave pay, service pay and public holidays were declined as unproven special damages. The Appellant received costs of the appeal and of the proceedings below.

Key legal issues

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01

Existence and duration of the employment relationship

Holding

An employment relationship existed from 2017 until 2nd November 2018; the 2015-2016 period was with Reef Hotels (Management) Limited.

Reasoning

The court applied section 10(7) of the Employment Act: the respondent produced no employment contract or records to rebut the claimant's evidence. DW1 admitted assigning the claimant duties from 2017 and sending him when the accident occurred. Documentary evidence showed the claimant worked for Reef Hotels in 2015-2016.

p. 5
02

Whether termination occurred and was unfair

Holding

The respondent terminated the claimant's employment and the termination was unfair for non-compliance with sections 41, 35(1)(c) and 45(4)(b) of the Employment Act.

Reasoning

DW1 denied terminating the claimant but never explained how the employment ended. The mandatory procedure under section 41 was not followed, nor section 35(1)(c) notice, nor were justice and equity under section 45(4)(b) satisfied.

p. 5
03

Entitlement to reliefs

Holding

Eight months' salary (ksh 84,000) as compensation and one month's salary in lieu of notice (ksh 10,500) awarded; other heads declined.

Reasoning

Compensation was granted under section 49 as termination was unfair; notice pay because section 35(1)(c) was not complied with. The remaining heads, being special damages, were neither specifically pleaded nor proved.

p. 5

Legal principles established

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  • Failure by an employer to issue a written contract cannot disadvantage the employee; the burden of proving or disproving an alleged term of employment falls on the employer.
  • A first appellate court must re-evaluate the evidence and arrive at its own independent conclusions.
  • Claims in the nature of special damages must be specifically pleaded and proved.

Court orders

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  1. 1.the equivalent of eight months' salary being compensation for unfair termination of employment (ksh 84,000)
  2. 2.one month salary in lieu of notice (ksh 10,500); total ksh 94,500
  3. 3.the awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  4. 4.the Appellant is awarded costs of this appeal and of the proceedings in the Court below

Authorities

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Legislation

  • Employment Actsection 10(1)
  • Employment Actsection 10(2)
  • Employment Actsection 10(7)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 41
  • Employment Actsection 45(4)(b)
  • Employment Actsection 49(2)

Cases cited (3)

  • Mursal & Another v Manese
    [2022] eKLR
  • Selle & Another v Associates Motor Boat Co. Ltd & Another
    [1968] E.A. 123
  • Peters v Sunday Post Ltd
    [1958] E.A. page 424
On appeal from
Chief Magistrate's Court at Mombasa (ELRC)
CMC-ELR Case No. 130 of 2021
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over the magistrates' court 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, "Buyoywa v Nobken General Supplies (Appeal E049 of 2022) [2023] KEELRC 431 (KLR)", Case Analysis (2023). Mombasa ELRC Appeal arising from Mombasa CMC-ELR Case No. 130 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/431/eng@2023-02-16

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