Ikuti v Tuangaze Limited (Cause 2154 of 2017) [2023] KEELRC 583 (KLR)
The bottom line
#A Kenyan court ruled that outsourcing a worker is not unfair dismissal, but awarded him unpaid wages and leave because the employer had no records to prove payment.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was terminated from employment
The claimant was not terminated; his employment ended lawfully through outsourcing to Chonjo Security Services
The claimant bore the burden under section 47(5) of proving termination. He produced no evidence of termination and his own evidence aligned with the respondent's case of transfer. Minutes of the November 30, 2016 meeting, a notice of transition and a deployment schedule showed he was absorbed by Chonjo Security Services and paid severance of Kshs 10,625. The outsourcing was on the same terms and not aimed at redundancy.
Whether the claimant was underpaid
The claimant was paid Kshs 8,500 monthly against prescribed minimum wages of Kshs 10,911.70 and later Kshs 12,221.10, entitling him to the balance
The respondent alleged the claimant collected Kshs 4,000 monthly in cash from a shop but produced no acknowledgment or paper trail. The court found the claimant earned Kshs 8,500 and, applying Legal Notice No. 197 of 2013 and Legal Notice No. 116 of 2015, confirmed underpayment for the respective periods.
Entitlement to unpaid leave
The claimant is entitled to pay for 16 accrued leave days admitted by the respondent
The respondent admitted in its witness statement that the claimant had 16 leave days due, corroborated by the leave record dated December 8, 2016. The court accordingly awarded Kshs 6,517.86 for unpaid leave despite dismissal of the unfair termination claim.
Legal principles established
#- The burden of proving that an unfair termination occurred rests on the employee, while the burden of justifying the grounds rests on the employer
- Outsourcing of employees is not illegal provided it accords with fair labour practices and is not aimed at rendering an employee redundant
- Where an employer alleges part of wages was paid in cash without any record or acknowledgment, the court will find on the documented record that the employee was underpaid
Court orders
#- 1.Award of underpaid salary of Kshs 57,880.80 (July 5, 2013 to April 30, 2015) and Kshs 74,422.00 (May 1, 2015 to December 31, 2016)
- 2.Award of unpaid leave days being Kshs 6,517.86
- 3.Total award of Kshs 138,819.86 with interest at court rates from date of judgment until payment in full
- 4.Claimant awarded costs of the suit
- 5.Respondent to issue claimant with a certificate of service within 30 days of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination, underpayment and leave pay)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ikuti v Tuangaze Limited (Cause 2154 of 2017) [2023] KEELRC 583 (KLR)", Case Analysis (2023). Cause No 2154 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/583/eng@2023-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.