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ELRCPartially AllowedMemorandum of claim dated August 11, 2017, filed November 10, 2017 (number not stated)· [2023] KEELRC 1112 (KLR)

Wanyonyi v Quissal Enterprises Ltd (Cause 849 of 2017) [2023] KEELRC 1112 (KLR)

Employment and Labour Relations Court
27 April 2023
2,281 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employer who can't prove why it fired a worker must pay compensation, notice pay, and leave dues.

What this practically means

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Executive summary

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The claimant sued the respondent, a transport business, alleging that he was employed as a truck driver from June 2015 at a monthly salary of ksh. 25,000, working twelve hours a day seven days a week, without written contract, payslips, annual leave or public holiday compensation, and that on 30/12/2016 the respondent's director terminated his employment by telephone without notice or a hearing. The respondent denied employing him, contending he worked for Westline Oilstream Suppliers Limited. The court framed three issues: existence of employment, fairness of termination, and entitlement to reliefs. On the first issue, the respondent's director admitted sending the claimant money by M-pesa and applying for his port pass in the respondent's name, but produced no contract with Westline; under section 10(7) of the Employment Act the burden of the missing written contract fell on the employer, and the court found an employment relationship existed. On the second issue, the respondent gave no reason for the termination and did not rebut the claimant's account; applying Walter Ogal Anuro and sections 43(1) and 45(4)(b), the court held the termination substantively and procedurally unfair. The court awarded seven months' salary (ksh. 175,000) as compensation rather than the twelve months' maximum, one month's notice pay (ksh. 25,000), and unpaid leave of ksh. 30,288.51 since the respondent kept no leave records under section 74(f). It ordered issuance of a certificate of service under section 51, with costs and interest to the claimant. Judgment was delivered at Mombasa on 27 April 2023 by Agnes Kitiku Nzei, J.

Key legal issues

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01

Existence of an employment relationship

Holding

On a balance of probability the claimant was the respondent's employee earning ksh. 25,000 per month

Reasoning

The respondent's director admitted sending the claimant money by M-pesa three times and that the respondent applied for the claimant's port pass in the respondent's name. He produced no documentation of any contract with Westline Oilstream Suppliers Limited. Section 10(7) of the Employment Act placed the burden of the missing written contract on the employer, and the M-pesa payments corroborated the claimant's testimony.

p. 4
02

Fairness of the termination

Holding

The termination was unfair: no valid reason was proved and no procedure was followed

Reasoning

The claimant gave an unrebuted account of being terminated by telephone without notice or a hearing. Under sections 43(1) and 45(4)(b) of the Employment Act the employer had to prove the reason for termination and to act in accordance with justice and equity. The respondent proved no reason and gave none, so the termination failed both the substantive and procedural fairness tests.

p. 4
03

Entitlement to leave days

Holding

The claim for ksh. 30,288.51 in unpaid leave was allowed because the respondent produced no leave records

Reasoning

The claimant pleaded that he worked one and a half years without annual leave. Under section 74(f) of the Employment Act the respondent was obliged to keep leave records; it produced none to show the claimant took leave, so the claimed leave pay was granted.

p. 5
04

Notice pay

Holding

One month's salary in lieu of notice awarded under section 35(1)(c)

Reasoning

Having worked for the respondent for over a year, the claimant was entitled to one month's notice under section 35(1)(c) of the Employment Act; none was given, so one month's salary of ksh. 25,000 was awarded in lieu.

p. 5

Legal principles established

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  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment lies on the employer
  • In a termination claim the employer must prove the reason for termination, failing which the termination is deemed unfair

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for compensation for wrongful/unfair termination of employment of ksh. 175,000
  2. 2.One month salary in lieu of notice of ksh. 25,000
  3. 3.Unpaid leave days of ksh. 30,288.51 (total ksh. 230,288.51)
  4. 4.The respondent shall issue the claimant with a certificate of Service pursuant to Section 51 of the Employment Act within thirty days of the judgment
  5. 5.The claimant is awarded costs of the suit and interest at court rates

Authorities

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Legislation

  • Employment Actsection 10(7)
  • Employment Actsection 43(1)
  • Employment Actsection 45(4)(b)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 74(f)
  • Employment Actsection 51

Cases cited (1)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim); specific provision not stated

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, "Wanyonyi v Quissal Enterprises Ltd (Cause 849 of 2017) [2023] KEELRC 1112 (KLR)", Case Analysis (2023). Memorandum of claim dated August 11, 2017, filed November 10, 2017 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1112/eng@2023-04-27

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