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ELRCDismissedNot stated in the judgment provided· [2024] KEELRC 96 (KLR)

Ngui v Termi-Lever Services Limited (Cause 2108 of 2017) [2024] KEELRC 96 (KLR)

Employment and Labour Relations Court
31 January 2024
2,785 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant sued the Respondent alleging employment from 1st August 2007 as an exterminator on a gross monthly salary of Kshs.18,000/=, terminated by word of mouth on 30th January 2016. He sought 12 months' salary, severance pay, pay in lieu of leave, service pay, salary in lieu of notice, a certificate of service, general damages, costs and interest, pleading both unfair termination and redundancy. The Respondent denied the claim, asserting it was incorporated on 20th May 2009 and thus could not have employed the Claimant in 2007, and that he was a casual labourer hired on a need basis at Kshs.400/= per day. The court framed three issues: the existence and terms of employment, whether there was redundancy or unfair termination, and entitlement to reliefs. On the evidence, including Mpesa records showing irregular payments between Kshs.400/= and Kshs.7,100/= and work schedules for isolated dates in 2012 and 2016, the court found the Claimant was a casual employee paid for days worked, not a permanent employee. His claimed 2007 employment failed because the Respondent did not exist then, and no pre-incorporation contract followed by post-incorporation adoption was proved. On separation, the Claimant's evidence of a call from a nameless secretary about downsizing was found curious and unsupported; under Section 47(5) of the Employment Act he failed to prove redundancy or unfair termination. All monetary prayers were declined, general damages being unavailable in employment contracts. The suit was dismissed, but the Respondent was ordered to issue a Certificate of Service within 30 days under Section 51 of the Employment Act, with each party bearing their own costs. Judgment was delivered virtually at Nairobi on 31st January 2024 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the Claimant was a permanent employee or a casual labourer

Holding

The court found the Claimant was a casual employee paid for days worked, not a permanent and pensionable employee on a monthly salary

Reasoning

The Mpesa payments lacked uniformity, fluctuating between Kshs.400/= and Kshs.7,100/= and did not add up to the alleged Kshs.18,000/= monthly salary in any month except one. Payments corresponded to days worked, consistent with the statutory definition of a casual employee under Section 2 of the Employment Act. The Claimant also did not avail Mpesa statements for 2013 and 2014.

p. 4
02

Whether the Claimant was employed in 2007 before the Respondent's incorporation

Holding

The Claimant failed to prove employment before 2012; the Respondent was incorporated on 20th May 2009 and could not have contracted earlier

Reasoning

Other than the Claimant's bare assertion of employment in 2007, there was no supporting evidence. The Certificate of Incorporation dated 20th May 2009 showed the company did not exist in 2007, and no pre-incorporation contract with an agent followed by a post-incorporation contract was proved.

p. 5
03

Whether the Claimant was declared redundant or unfairly terminated

Holding

The Claimant failed to discharge his burden of proving redundancy or unfair termination

Reasoning

The alleged call from a nameless secretary was unsupported by any evidence; the original 2017 statement made no reference to downsizing, and the dates of termination differed between pleadings. The court found the amendment was tailored to fit the Mpesa records. Under Section 47(5) the burden of proving unfair termination rests on the employee, and no semblance of redundancy or unfair termination was established.

p. 6
04

Entitlement to a certificate of service

Holding

The Claimant is entitled to a Certificate of Service under Section 51 of the Employment Act

Reasoning

Regardless of the failure of the main claim, Section 51 of the Employment Act entitles an employee to a certificate of service, and the court ordered the Respondent to issue one within 30 days.

p. 7

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds for termination rests on the employer (Section 47(5), Employment Act)
  • A company cannot be bound by contracts purportedly made before its incorporation unless after incorporation it enters a new contract to the same effect
  • General damages are not available in contracts of employment
  • An employee is entitled to a certificate of service under Section 51 of the Employment Act

Court orders

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  1. 1.The Claimant's suit is dismissed
  2. 2.Respondent to issue a Certificate of Service within 30 days
  3. 3.Parties shall bear own costs

Authorities

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Legislation

  • Employment Act, 2007Section 37
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (4)

  • Abigael Jepkosgei Yator & another v China Hanan International Co. Ltd
    [2018] eKLR
  • Jackson Muiruri Mwangi v Sinohydro Corporation (K) Ltd
    [2016] eKLR
  • Kelner v Baxter
    [1866]
  • Mawogola Farmers & Growers Co. Ltd Kayanja & others
    [1972] EA 272
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act, 2007); judgment delivered under Article 159(2)(d) and Article 48 of the Constitution, Section 1B of the Civil Procedure 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, "Ngui v Termi-Lever Services Limited (Cause 2108 of 2017) [2024] KEELRC 96 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/96/eng@2024-01-31

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