Mwangi v Superiofone Holdings Ltd (Cause 173 of 2018) [2023] KEELRC 1430 (KLR)
The bottom line
#A Kenyan employer who can't produce employment records like contracts and rosters will likely lose an unfair termination claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unfairly terminated or deserted duty
The court believed the Claimant's account that she was sent away by the manager on 26th March 2017 and concluded the Respondent terminated her unfairly and unlawfully without notice or hearing.
The Respondent, as employer, bore the duty under Sections 10 and 74 of the Employment Act to keep and produce employment records, contracts, duty rosters and leave records, and produced none. The court presumed the records were not kept or would have been adverse to the Respondent. There was no evidence of any effort to trace the allegedly deserting employee, no report to the labour office of desertion, and no reply to the labour officer's letter demanding compensation. The Respondent also admitted no disciplinary hearing or termination notice was issued.
Entitlement to house allowance, notice pay, compensation, overtime and public holiday pay
House allowance of Kshs.37,800, one month's notice pay of Kshs.11,300 (net), six months' compensation of Kshs.72,000, overtime of Kshs.141,600 and public holiday pay of Kshs.14,769.28 were awarded.
RW1 admitted no housing or house allowance was provided, that the Claimant worked overtime and on public holidays, and no muster roll or records were produced to dislodge the pleaded figures. The gross salary of Kshs.12,000 was accepted since the Respondent produced no records to dislodge that evidence. Under Section 49(4) of the Act, considering the 21 months of service, non-specialized work, lack of terminal dues and no contributory conduct by the Claimant, six months' gross salary was fair compensation.
Whether unremitted NHIF/NSSF deductions could be paid to the employee
Denied - the court cannot order statutory deductions paid to the employee where the statutory bodies are not party to the proceedings.
Once deducted, such sums belong to the statutory public bodies; releasing them to the employee without the bodies being party to the suit is legally unsound and there is no assurance the employee would remit them.
Whether terminal dues were paid by the Respondent
The allegation of payment of terminal dues was rejected for want of evidence.
RW1 alleged payment of Kshs.17,200 in terminal dues but admitted in cross-examination that no evidence of such payment was availed. The court held no terminal dues were paid.
Legal principles established
#- Sections 10 and 74 of the Employment Act oblige the employer to keep and produce employment records; failure to do so invites an adverse presumption that the records were not kept or would have contradicted the employer's position.
- Termination without notice, without a disciplinary hearing and without substantive and procedural fairness under Sections 41, 43, 45 and 47 of the Employment Act is unfair and unlawful.
- Severance pay under Section 40 of the Employment Act is payable only on redundancy and is not available for termination by other modes; it is distinct from service pay.
Court orders
#- 1.A declaration that the termination of the Claimant by the Respondent was unfair and unlawful
- 2.The Claimant is awarded a total of Kshs.278,169.28 (house allowance Kshs.37,800; salary in lieu of notice Kshs.12,000; compensation Kshs.72,000; overtime Kshs.141,600; public holidays worked Kshs.14,769.28)
- 3.All other claims denied
- 4.Costs to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act reliefs claimed; no specific constitutional article cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v Superiofone Holdings Ltd (Cause 173 of 2018) [2023] KEELRC 1430 (KLR)", Case Analysis (2023). Cause No 173 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1430/eng@2023-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.