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ELRCDismissedChief Magistrate's Court Milimani Commercial Courts Case No 260 of 2018 (appeal therein)· [2023] KEELRC 1723 (KLR)

Masters Fabricators Limited v Oiro (Appeal E053 of 2020) [2023] KEELRC 1723 (KLR)

Employment and Labour Relations Court
13 July 2023
2,162 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed an employer must pay Kshs 218,800 plus interest and costs for firing a worker who sued over a workplace injury.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court against the judgment of Hon DW Mburu SPM delivered on 17/7/2020 in Milimani CMCC No 260 of 2018, in which the respondent (claimant) succeeded in a claim for unlawful and unfair termination. The appellant employer argued that the finding of unlawful termination lacked adequate proof and that the award of Kshs 218,800 was unsupported. Guided by Selle v Associated Motor Boat Company, the court re-evaluated the evidence. It found credible, corroborated testimony that the claimant, a fitter/welder employed since 2010, was verbally terminated on 27/3/2018 by his supervisor after attending court on 26/3/2018 in a WIBA suit against the employer, and was denied entry to the premises the following day. The employer's contrary account - that the claimant was caught with a stolen safety belt and absconded - was unsupported: no CCTV footage, no security guard witness, no police statement, and no notice to show cause or hearing. The court held the termination violated Sections 36, 41, 43 and 45 of the Employment Act, 2007, treating the employer's failure to compensate under WIBA and victimization of the claimant for litigating as aggravating factors under Section 49. It upheld the full award of Kshs 218,800 comprising one month's notice pay, leave pay, March 2018 salary and eight months' compensation, dismissed the appeal entirely, awarded interest at court rates from 17/7/2020, and ordered the appellant to pay costs of both courts.

Key legal issues

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01

Whether the verbal termination was lawful and fair

Holding

The termination was unlawful and unfair; the employee was victimized for suing his employer under WIBA and dismissed without notice, notice to show cause or hearing

Reasoning

PW1 produced official court records of Nairobi CMCC No 7174 of 2016 corroborating that he attended a WIBA hearing on 26/3/2018 and was refused entry to work the next day. The appellant failed to produce CCTV footage, the security guard, or any statement supporting the theft allegation. The dismissal letter written a month later was a ruse to sanitise an unlawful verbal termination.

p. 4
02

Whether the award of eight months' salary as compensation was justified

Holding

The award of the equivalent of eight months' salary (Kshs 153,600) was upheld, the employee having served eight years and having suffered a work injury for which he sued the employer

Reasoning

Although the trial court should have given reasons under Section 49(1)(c) and (4) of the Employment Act, this court independently found aggravating factors: the employer obstructed access to justice, victimized the employee, paid no terminal benefits, and the employee had no alternative employment at trial.

p. 4

Legal principles established

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  • On a first appeal, the court re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses
  • Termination without notice, notice to show cause or hearing violates Sections 36, 41, 43 and 45 of the Employment Act, 2007

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The award by the trial Court of Kshs 218,800 is upheld
  3. 3.The award shall attract interest at Court rates from 17/7/2020 until payment in full
  4. 4.The appellant to meet the costs of the suit before the trial Court and this Court

Authorities

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Legislation

  • Employment ActSections 36, 41, 43, 45, 49(1)(c) and 49(4)
  • Work Injury Benefits Act (WIBA)null

Cases cited (3)

  • Selle v Associated Motor Boat Company Limited
    [1968] EA 123
  • James Kabengi Mugo v Syngenta East Africa Limited
    [2013] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
On appeal from
Chief Magistrate's Court, Milimani Commercial Courts
Case No 260 of 2018
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Employment and Labour Relations Court Act)

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, "Masters Fabricators Limited v Oiro (Appeal E053 of 2020) [2023] KEELRC 1723 (KLR)", Case Analysis (2023). Chief Magistrate's Court Milimani Commercial Courts Case No 260 of 2018 (appeal therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1723/eng@2023-07-13

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