Ogero & another v Rotich t/a Chemie Cleaning & General Services (Cause 102 of 2018) [2023] KEELRC 720 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Existence of employment relationship without a written contract
The employment relationship was inferred from NSSF provisional member statements of account showing employment dates of 1 June 2010 (1st claimant) and 1 August 2012 (2nd claimant).
No written contracts of service were produced. The court held that in the absence of a written contract, secondary documentary evidence suffices to infer an employment relationship. NSSF member statements recorded the claimants as employed by the respondent on the respective dates, and that unchallenged documentary evidence established the relationship and its commencement dates.
Unfair termination
The termination of both claimants' contracts was unfair.
The claimants testified they received termination letters dated 31 August 2017 without prior notice or reasons. The testimony was unchallenged. Section 35(1)(c) of the Employment Act requires at least 28 days' written notice of termination and section 41 requires the employer to hear the employee before termination. Neither was done, so the termination was unfair.
Quantum of compensation
Kshs 40,000/- for the 1st claimant (7 years' service) and Kshs 25,000/- for the 2nd claimant (about 5 years' service).
Neither claimant disclosed their salary at the point of separation, limiting the court's ability to compute statutory compensation. The court exercised discretion, considering length of service (7 years for the 1st claimant, about 5 years for the 2nd) and the absence of salary disclosure, to award modest lump-sum figures.
Leave claim
Declined for lack of evidential foundation.
Section 28(4) of the Employment Act limits how much leave may be carried forward. The claimants did not show that leave accrued with the respondent's permission or that leave applications were made and denied. Without that foundation, the head of claim failed even after formal proof.
Underpayments claim
Declined for lack of evidential or legal foundation.
The claimants provided no evidence or legal basis, such as the applicable Regulation of Wages Order, to support the underpayments claim. A claimant bears the burden of laying an evidential and legal foundation for each head of claim; unproven heads fail regardless of the unchallenged status of the general testimony.
Legal principles established
#- Where there is no written contract of service, the court may rely on secondary documentary evidence to infer an employment relationship.
- An employer who issues neither statutory notice of termination nor an opportunity to be heard before termination effects an unfair termination.
Court orders
#- 1.Declared that the respondent terminated the claimants' contracts unfairly
- 2.Awarded the 1st Claimant compensation of Kshs 40,000/-
- 3.Awarded the 2nd Claimant compensation of Kshs 25,000/-
- 4.Declined the other heads of claim (leave and underpayments)
- 5.Denied the claimants costs for failing to file submissions within the agreed timelines
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination of employment and breach of contract claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogero & another v Rotich t/a Chemie Cleaning & General Services (Cause 102 of 2018) [2023] KEELRC 720 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/720/eng@2023-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.