Fresco v Camusat Kenya Limited & another (Cause 1884 of 2017) [2023] KEELRC 2116 (KLR)
The bottom line
#A Kenyan court awarded a dismissed executive over KES 4.5 million plus Euros 72,702, ruling two related companies were jointly responsible for his unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and applicable law
The issue was exhaustively determined at interlocutory stage by Makau J and was spent; Kenyan courts had jurisdiction as the contract was performed in Kenya.
The 2nd Respondent's preliminary objection that only Mauritian courts could determine the dispute was decided by Makau J in a ruling of 22nd November 2019, which found the contract was performed in Kenya, the Claimant resided in Nairobi, and the breaches occurred in Kenya. The court held the twin issues were therefore spent and could not be resuscitated in final submissions.
Nexus between the 1st and 2nd Respondents
The Claimant's engagement by both Respondents was a blended and indivisible employment relationship; the corporate identity principle could not be used to defeat his rights.
Although the Respondents invoked corporate identity, their defences were strikingly similar, they shared a brand name, and the two contracts were issued within one day. Following Rika J in Phillip Ateng Oguk v Westmont Power, related entities should be viewed as economic units rather than legally separate bodies so as not to obfuscate employment rights.
Whether termination was lawful and fair
Termination was unfair: no valid reason was proved under Section 43 and procedural fairness under Section 41 was breached.
The Claimant was cleared by the Disciplinary Committee of the vehicle charge, yet the Respondents relied on it to terminate him. The immigration charge rested on anonymous letters and the uncorroborated word of Getachew Beyene, who was not called as a witness; the Committee should have required independent evidence linking the Claimant to the letters. The Respondents thus failed under Sections 41 and 43 of the Employment Act.
Remedies
Claimant awarded 4 months' salary in compensation and 3 months' salary in lieu of notice against both Respondents severally; other heads dismissed.
In assessing compensation the court considered the contractual period served and the Respondents' culpability. Notice pay was provided for in the contract dated 1st July 2014. Claims for annual leave, service pay and balance of contract lacked a basis, and the constitutional claim was not proved.
Legal principles established
#- An employer may not disregard or set aside the findings of its own disciplinary process without a valid, explained reason
- Where multiple related entities engage one employee, they should be treated as economic units and the employment relationship viewed as blended and indivisible
- An employer bears the burden of proving valid reason for termination on a balance of probability under Section 43 of the Employment Act
Court orders
#- 1.Judgment entered in favour of the Claimant against the 1st Respondent (Camusat Kenya Limited) for Kshs. 2,592,984 being 4 months' salary in compensation and Kshs. 1,944,738 being 3 months' salary in lieu of notice, totalling Kshs. 4,537,722
- 2.Judgment entered in favour of the Claimant against the 2nd Respondent (Camusat Maurice Limited) for Euros 41,544 being 4 months' salary in compensation and Euros 31,158 being 3 months' salary in lieu of notice, totalling Euros 72,702
- 3.Awards payable net of statutory deductions and to attract interest at court rates from the date of judgment until payment in full
- 4.The 1st and 2nd Respondents to meet the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute arising from termination of employment performed in Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fresco v Camusat Kenya Limited & another (Cause 1884 of 2017) [2023] KEELRC 2116 (KLR)", Case Analysis (2023). Cause No 1884 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2116/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.