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ELRCPartially AllowedMemorandum of Claim dated August 30, 2017 (ELRC)· [2023] KEELRC 784 (KLR)

Nakhayo v Vegpro Kenya Limited (Employment and Labour Relations Cause 1783 of 2017) [2023] KEELRC 784 (KLR)

Employment and Labour Relations Court
23 March 2023
OKOcharo Kebira
4,401 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer unfairly fired a worker of 10 years, showing casual workers with continuous service deserve full legal protections.

What this practically means

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Executive summary

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The claimant sued the respondent, a vegetable grading and packing company, seeking declarations that her summary dismissal was unlawful and unfair, and payment of terminal dues and compensatory damages totalling Kshs 204,050, plus costs and interest. She asserted she worked for the respondent from February 2006 to June 8, 2016, rising from grader to scaler, and was dismissed after a mini blade (knife No 190) issued to a colleague went missing and was found in a packed punnet. The respondent denied she was other than a casual worker engaged as work demanded, said she was 'let go' over the knife incident without a disciplinary process because she was a casual, and produced no attendance register. The court framed three issues: the nature of employment, fairness of termination, and reliefs. Relying on unchallenged documents tendered by the claimant and section 10(7) of the Employment Act, the court found the respondent failed to discharge its burden and held that the claimant was employed on a term contract terminable by twenty-eight days' notice. It further held the dismissal procedurally unfair because the mandatory section 41 process was not followed, and substantively unjustified because the respondent failed to prove a valid and fair reason under sections 43 and 45(2). Judgment was entered for the claimant for seven months' gross salary (Kshs 74,200) as compensation under section 49(1)(c), one month's salary in lieu of notice (Kshs 10,600), and service pay (Kshs 66,250), together with costs and interest at court rates from the date of judgment until full payment. The full 12 months' compensation sought was not awarded.

Key legal issues

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01

Nature of the employment relationship

Holding

The claimant was employed on a term contract, not as a casual worker, at the time of separation.

Reasoning

The claimant produced unchallenged documents (medical certificates, training certificate, bonus charts, performance ratings) showing continuous service. The respondent, which claimed she was a casual engaged only as work demanded, failed to produce the attendance register or muster roll it said employees signed. Under section 10(7) of the Employment Act, the burden lay on the respondent to disprove the claimed term contract, and it did not discharge that evidential burden.

p. 7
02

Procedural fairness of the dismissal

Holding

The dismissal was procedurally unfair as the mandatory process under section 41 was not followed.

Reasoning

Section 41 requires notice of intended termination and grounds, an opportunity to make representations with a right of accompaniment, and consideration of those representations. The respondent's witness confirmed no such process was undertaken, contending the claimant was a casual. Having found she was a term-contract employee, the protections applied and their breach rendered the dismissal procedurally unfair.

p. 8
03

Substantive fairness of the dismissal

Holding

The dismissal was substantively unjustified.

Reasoning

The respondent asserted the claimant lost a knife found in a packed punnet, but given the claimant's contrary evidence it had to demonstrate clearly that the knife was in her possession when it disappeared. The respondent's witness's evidence was too casual and insufficient to discharge the legal burden under section 45(2) to prove a valid and fair reason.

p. 8
04

Reliefs

Holding

The claimant was awarded 7 months' gross salary as compensation, one month's salary in lieu of notice, and service pay as claimed, with costs and interest.

Reasoning

Exercising discretion under section 49(1)(c), the court considered the manner of dismissal, the want of procedural and substantive fairness and length of service, awarding 7 of the 12 months claimed. Having found the employment terminable by 28 days' notice which was not issued, it awarded one month's salary in lieu. Service pay of Kshs 66,250 was awarded as claimed since the respondent gave no justification to deny it.

p. 8

Legal principles established

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  • Where an employer fails to issue a written contract, the burden of proving or disproving an alleged term of employment lies on the employer under section 10(7) of the Employment Act.
  • An employee who has worked continuously beyond casual terms is employed on a term contract terminable by twenty-eight days' notice or payment of one month's salary in lieu.
  • Section 41 of the Employment Act mandatorily requires notice of grounds, an opportunity to be heard with accompaniment, and consideration of representations before termination; breach renders dismissal procedurally unfair.
  • Under sections 43 and 45(2) of the Employment Act, the employer bears the burden of proving a valid and fair reason for termination.

Court orders

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  1. 1.Compensation pursuant to the provisions of section 49 [1] [c] of the Employment Act, seven [7] months' gross salary, Kshs 74,200
  2. 2.One month's salary in lieu of notice, Kshs 10,600
  3. 3.Service pay Kshs 66,250
  4. 4.Costs of this suit
  5. 5.Interest on the awarded sum at court rates, from the date of this Judgment till full payment

Authorities

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Legislation

  • Employment Actsection 9 [1]
  • Employment Actsection 10 [7]
  • Employment Actsection 35 [1] [c]
  • Employment Actsection 37
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45 [2]
  • Employment Actsection 49 [1] [c]
  • Evidence Actsection 109
  • Food, Drugs and Chemical substances ActCap 254
  • Civil Procedure RulesOrder 7 Rule 6
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Chemelil Sugar Company vs Ebhrahim Ochieng Otuon & 2 others
    [2015] eKLR
  • Susan Misoke vs Vegpro Kenya Limited
    [2020] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Francis Runji Karingi & 5 others v Chira Hebei Water Conservancy Engineering Bureau
    [2014] eKLR
  • Abdul Shakoor Sheik v Abdul Majid sheikh and 2 others
    LLR No 2219 [CAK]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment and unfair termination dispute)

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, "Nakhayo v Vegpro Kenya Limited (Employment and Labour Relations Cause 1783 of 2017) [2023] KEELRC 784 (KLR)", Case Analysis (2023). Memorandum of Claim dated August 30, 2017 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/784/eng@2023-03-23

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