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ELRCPartially AllowedMemorandum of Claim dated August 30, 2017· [2023] KEELRC 716 (KLR)

Ndonye v Kandia Fresh Produce Suppliers Ltd (Cause 1785 of 2017) [2023] KEELRC 716 (KLR)

Employment and Labour Relations Court
16 March 2023
OKOcharo Kebira
5,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a long-serving worker over Ksh 150,000 because her employer had no records to disprove her side of the story.

What this practically means

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Executive summary

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In this first-instance employment claim decided by the Employment and Labour Relations Court at Nairobi (Ocharo Kebira J, judgment delivered 16 March 2023), the claimant, formerly a grader with a horticultural processing company, alleged she was employed from April 2003 and summarily dismissed on 17 January 2015 on the ground that work had diminished, without notice or hearing. She sought a declaration of unfair dismissal, terminal benefits and compensation totalling Ksh 1,085,280. The respondent contended she was an intermittent piece rate worker from January 2011 to December 2014 who voluntarily stopped working. The court framed five issues. On the first, it found employment began in 2003, holding the respondent estopped by its cheque covering service pay for 2007 and 2008, and applying authority that an employer's failure to keep statutory records means the employee's evidence is believed. On the second, the court held the claimant was a term-contract employee, not a piece rate worker, the respondent having proved no specific tasks or completion-based wages. On fairness, the court found the respondent's accounts mutually inconsistent, no valid reason proved, no notice given (amounting to summary dismissal without any fundamental breach), and no section 41 hearing, rendering the termination substantively and procedurally unfair. Judgment was entered for the claimant: declaration of unfair dismissal, Ksh 14,400 notice pay, Ksh 17,188 leave pay, Ksh 72,000 being five months' compensation under section 49(1)(c), Ksh 50,400 service pay for 2003-2010, interest, and costs. Claims for holiday off-days, overtime and severance for NSSF-covered years were refused for want of evidence and specificity, making the claim only partially allowed.

Key legal issues

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01

Date of commencement of employment

Holding

The claimant was first employed in 2003; the respondent failed to rebut her evidence and was estopped by its own payment of service pay for 2007 and 2008.

Reasoning

The medical examination certificates named the respondent as the workplace, and the labour officer's computations, which included service pay for 2007 and 2008, were paid by the respondent by cheque in 2017. The respondent failed to produce records it referenced to disprove employment before 2011, and an adverse inference was drawn. Precedent holding employers responsible for failing to keep records was applied.

p. 7
02

Nature of the employment contract

Holding

The claimant was not a piece rate worker but worked under a term contract of employment terminable by notice.

Reasoning

Under section 2 of the Employment Act, piece work is work paid by the amount of work performed irrespective of time. The employer asserting a piece rate arrangement bears the burden of proving the specific task and wage payable on completion. The respondent produced no material showing the claimant was assigned specific tasks for specific wages, so the piece rate characterisation failed.

p. 8
03

Fairness of the termination

Holding

The termination was both substantively and procedurally unfair: no valid reason was proved and the section 41 procedure was not followed.

Reasoning

The respondent gave inconsistent accounts (voluntary retirement in its letter; cessation of work in pleadings) and produced no evidence to justify the separation. The court found the termination arose from reduced work. No notice was issued, amounting to summary dismissal under section 44(1), with no fundamental breach proved under section 44(3). The employer also failed to inform the claimant of grounds and give her a hearing as required by section 41, rendering the dismissal unfair under section 45(2).

p. 9
04

Entitlement to reliefs

Holding

Notice pay, the labour officer-assessed leave pay, five months' compensation under section 49(1)(c), and service pay for 2003-2010 were awarded; overtime, holiday off-days and severance for the NSSF-covered period were refused.

Reasoning

Section 35 as read with section 36 entitled the claimant to one month's notice pay. Leave pay was anchored on the uncontested labour officer's computation of Ksh 17,188. Compensation under section 49 reflected the long service and the unfairness. Service pay was excluded for years with NSSF remittances. Overtime and holiday claims failed for want of evidence and specificity.

p. 10

Legal principles established

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  • A party who deposits payment including an amount computed on a particular basis is estopped from denying the facts underlying that computation.
  • An employer who fails to keep employment records contrary to section 79 of the Employment Act risks the court believing the employee's uncorroborated evidence.
  • An employer asserting a piece rate arrangement must prove the specific task assigned and the wage payable on completion.
  • Reliefs are awarded on evidence, not submissions.

Court orders

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  1. 1.A declaration that the dismissal of the claimant from employment was both procedurally and substantively unfair.
  2. 2.Salary in lieu of notice of Ksh 14,400.
  3. 3.Unpaid leave of Ksh 17,188.
  4. 4.Compensation pursuant to section 49(1)(c) for unfair dismissal of five months' gross salary, Ksh 72,000.
  5. 5.Service pay of Ksh 50,400.
  6. 6.Interest at court rates on the awarded sums from the date of judgment till full payment.
  7. 7.Costs of the suit to the claimant.

Authorities

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Legislation

  • Employment Actsections 2, 28, 35, 36, 40, 41, 43, 44(1), 44(2), 44(3), 45(2), 47(5), 49, 79
  • Evidence Actsections 107, 109
  • Food and Chemical Substances Act [cap 254]form d (medical examination certificate)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d), 48

Cases cited (8)

  • Chemelil Sugar Company v Ebrahim Ochieng Otuon & 2 others
    (2015) eKLR
  • Francis Ndirangu Wachira v Betty Wairimu Maina
    (2019) eKLR
  • Walter Anuro Ogal v Teachers Service Commission
    (2013) eKLR
  • Gitobu Imanyara & 2 others v Attorney General
    (2016) eKLR
  • Nelson Okello Gunga v Bidco Refinaries Limited
    (2018) eKLR
  • Peter Wambani v Betuel Ndungu t/a Maji Pump Ventures
    (2020) eKLR
  • Lawi Wekesa Wasike v Mattan Contractors Limited
    [2016] eKRL
  • Krystalline Salt Limited v Kwekwe and 63 others
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Labour Relations Act over employment disputes

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, "Ndonye v Kandia Fresh Produce Suppliers Ltd (Cause 1785 of 2017) [2023] KEELRC 716 (KLR)", Case Analysis (2023). Memorandum of Claim dated August 30, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/716/eng@2023-03-16

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