Wanyonyi v Quissal Enterprises Ltd (Cause 849 of 2017) [2023] KEELRC 1112 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Existence of an employment relationship
On a balance of probability the claimant was the respondent's employee earning ksh. 25,000 per month
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.
Fairness of the termination
The termination was unfair: no valid reason was proved and no procedure was followed
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.
Entitlement to leave days
The claim for ksh. 30,288.51 in unpaid leave was allowed because the respondent produced no leave records
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.
Notice pay
One month's salary in lieu of notice awarded under section 35(1)(c)
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.
Legal principles established
#- 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
#- 1.Judgment entered for the claimant against the respondent for compensation for wrongful/unfair termination of employment of ksh. 175,000
- 2.One month salary in lieu of notice of ksh. 25,000
- 3.Unpaid leave days of ksh. 30,288.51 (total ksh. 230,288.51)
- 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.The claimant is awarded costs of the suit and interest at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim); specific provision not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.