Otunga v Hydro Build Limited (Employment and Labour Relations Appeal E147 of 2022) [2023] KEELRC 1467 (KLR)
The bottom line
#Kenya's Employment Court ruled that employers without written contracts bear the burden of proving salary terms, awarding an engineer five months' compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant pleaded his salary
The Appellant pleaded Ksh 90,000.00 as his agreed salary and later pleaded the adverse variations; the plea was clear and unambiguous.
Reading paragraph 7 of the Memorandum of Claim, the Appellant asserted a monthly salary of Ksh 90,000.00 on engagement, followed by alleged reductions to Ksh 40,000.00 then Ksh 60,000.00. To plead is to assert or allege in a pleading; the memorandum did both. The variations did not derogate from the fact that the agreed salary was pleaded.
Burden of proof regarding the disputed term of remuneration
Because the Respondent failed to reduce the contract into writing under sections 9 and 10 of the Employment Act, the burden lay on the Respondent to disprove the Appellant's asserted salary.
Section 9 obliges employers to reduce contracts exceeding three months into writing; section 10(7) places the burden of proving or disproving an alleged term on an employer who fails to produce written particulars. The Respondent tendered no evidence at trial, so the pay slips and bank statement produced by the Appellant stood as prima facie proof of an exit gross salary of Ksh 77,034.00.
Whether the trial court could deny compensation for wrongful termination for failure to plead salary
The trial court's refusal was misconceived; the established exit salary of Ksh 77,034.00 permitted assessment of statutory compensation under section 49.
The authorities relied on by the trial court concerned claims for salary arrears under the old employment law regime, not the statutory compensation for unfair termination introduced by section 49 of the Employment Act. Since the exit salary was ascertainable from the pay slips, the court should have applied it to assess compensation.
Legal principles established
#- Where an employer fails to reduce a contract of service of three months or more into writing as required by section 9 of the Employment Act, the burden of proving or disproving an alleged term of employment lies on the employer under section 10(7).
- Compensation for unfair termination under section 49 of the Employment Act is calculated on the employee's established exit salary.
- A claimant's failure to specifically plead his salary cannot justify denial of compensation for wrongful termination where the figure is established from the evidence on record; such pleadings objections apply to salary arrears claims, not statutory compensation claims.
Court orders
#- 1.Set aside the part of the trial court's decision declining the prayer for compensation for unfair termination
- 2.Award compensation for wrongful termination equivalent to five months' gross salary, i.e. Ksh 77,034.00 x 5 = Ksh 385,170.00
- 3.Award interest on the sum at court rates from the date of the trial court's decision until payment in full
- 4.Award subject to applicable statutory deductions
- 5.Appellant granted costs of the Appeal
- 6.All other orders of the trial court to remain in force
- On appeal from
- ELRC trial court (magistrate's court)
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC subordinate court / magistrates' court decision
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Otunga v Hydro Build Limited (Employment and Labour Relations Appeal E147 of 2022) [2023] KEELRC 1467 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1467/eng@2023-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.