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ELRCPartially AllowedELRC Cause (Nairobi)· [2023] KEELRC 2699 (KLR)

Nduku v Osteria Group (Kenya) Limited (Cause E002 of 2022) [2023] KEELRC 2699 (KLR)

Employment and Labour Relations Court
27 October 2023
SRStella Rutto
3,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a bodyguard over KSh 2.4 million because his employer had no written contract and could not prove he was a casual worker.

What this practically means

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Executive summary

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The Claimant sued the Respondent alleging employment as a Bodyguard from 2nd January 2005 on an oral contract at a monthly salary later reviewed from ksh 60,000/= to ksh 90,000/=. He claimed the salary was unilaterally reduced to ksh 60,000/= in March 2017 and thereafter to ksh 12,000/= weekly-equivalent, and that on 10th April 2021 he was verbally told there was no work, effectively terminating him. He sought ksh 7,896,000/= being notice pay, leave pay, service pay, unpaid house allowance, unpaid salary and compensatory damages. The Respondent denied employing him, contending he was engaged on a need-by-need basis and paid per task. The Respondent did not call oral evidence despite filing a witness statement. The Court framed three questions: the nature of the employment, whether termination was unfair and unlawful, and entitlement to reliefs. Applying Section 10(7) of the Employment Act, the Court held the Respondent failed to prove the engagement was casual or intermittent, making the Claimant a regular employee protected from unfair termination. The Respondent proved no valid reason for termination (Sections 43, 45) and no fair procedure (Section 41), so the termination was unfair and unlawful. The Court awarded notice pay of ksh 90,000/=, compensatory damages of ksh 540,000/= (six months), unpaid leave for 18 months of ksh 94,500/=, unpaid salary of ksh 1,602,000/=, and ksh 100,000/= for breach of the right to fair labour practices under Article 41(1), totalling ksh 2,416,500/= with interest. Claims for degrading treatment compensation and house allowance failed for want of proof. A Certificate of Service was ordered and the Respondent to bear costs.

Key legal issues

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01

Nature of the employment relationship

Holding

Respondent failed to discharge its Section 10(7) burden of proving the Claimant was a casual employee; he was a regular employee protected from unfair termination

Reasoning

The Respondent alleged the Claimant was engaged on a need-by-need basis but led no evidence. The Claimant exhibited Mpesa statements from the Respondent's Manager and bounced cheques. Under Section 10(7), the employer bears the burden of proving or disproving terms of employment where no written contract is produced. The Respondent also failed to avail its muster roll, so it was held to be a regular employee.

p. 4
02

Unfair and unlawful termination

Holding

Termination was both substantively and procedurally unfair under Sections 41, 43 and 45 of the Employment Act

Reasoning

The Respondent offered no reason for the disengagement, so substantive justification under Sections 43(1) and 45(2)(a) & (b) was not proved. No evidence showed any hearing or notification as required by Section 41(1). Consequently the termination was unfair and unlawful under Sections 41, 43 and 45.

p. 5
03

Unpaid salary

Holding

Claim for ksh 1,602,000/= unpaid salary succeeded as Respondent did not prove full settlement

Reasoning

With no written contract on record, the Respondent bore the burden of proving the Claimant's salary or disproving the claim of ksh 90,000/= monthly. It led no evidence and did not controvert the Claimant's assertions, so the claim for unpaid salary from March 2017 to April 2021 succeeded.

p. 5
04

Violation of right to fair labour practices

Holding

Withholding salary breached Section 17(1) of the Employment Act and Article 41(1) of the Constitution

Reasoning

The bounced cheques confirmed salary was unpaid, breaching the statutory duty to pay wages earned and constituting an unfair labour practice in violation of Article 41(1) of the Constitution, exposing the Claimant to pecuniary embarrassment. Compensation of ksh 100,000/= was awarded.

p. 6

Legal principles established

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  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment lies on the employer
  • A casual employee is one paid at the end of each day and not engaged for longer than twenty-four hours at a time

Court orders

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  1. 1.A declaration that the termination of the Claimant from employment was unfair and unlawful
  2. 2.A declaration that the Respondent violated the Claimant's right to fair labour practices as guaranteed under Article 41(1) of the Constitution
  3. 3.One month's salary in lieu of notice of ksh 90,000.00
  4. 4.Compensatory damages of ksh 540,000.00 equivalent to six months' gross salary
  5. 5.Unpaid leave for 18 months of ksh 94,500.00
  6. 6.Unpaid salary of ksh 1,602,000.00 from March 2017 up to April 2021
  7. 7.Compensation of ksh 100,000.00 for breach of the right to fair labour practices
  8. 8.Total award of ksh 2,416,500.00 with interest at court rates from the date of Judgment until payment in full
  9. 9.Certificate of Service to issue within 30 days under Section 51(1) of the Employment Act
  10. 10.Respondent to bear the costs of the claim

Authorities

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Legislation

  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSection 10(7)
  • Employment ActSection 17(1)
  • Employment ActSection 17(10)
  • Employment ActSection 28(4)
  • Employment ActSection 35(1)(a)
  • Employment ActSection 41(1)
  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a),(b),(c)
  • Employment ActSection 51(1)
  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Equity Bank Limited v Bobbin (EPZ) Limited
    (2021)
  • Janet Nyandiko v Kenya Commercial Bank Limited
    (2017) eKLR
  • Shadrack Kahungani Mukwana v Wines of the World Limited
    (2014) eKLR
  • Jackson Muiruri Wathigo t/a Murtown Supermarket v Lilian Mutune
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41(1) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nduku v Osteria Group (Kenya) Limited (Cause E002 of 2022) [2023] KEELRC 2699 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2699/eng@2023-10-27

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