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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 842 (KLR)

Shatora v Orange Garage for World Navi Co. Ltd (Employment and Labour Relations Cause 1770 of 2017) [2024] KEELRC 842 (KLR)

Employment and Labour Relations Court
12 April 2024
OKOcharo Kebira
4,408 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that cannot prove desertion and follow fair procedure must pay its former cleaner notice, leave, service pay and compensation.

What this practically means

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Executive summary

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The Claimant sued the Respondent alleging about eight years and seven months of employment as a cleaner, ended orally on 4th August 2017 without notice or terminal dues, and sought declarations, terminal benefits, compensation, interest and costs, cumulatively Kshs. 4,300,085.70, including Kshs. 3,000,000 general damages for discrimination. The Respondent denied the employment relationship or that it dismissed her, with its Office Administrator asserting piece-rate employment and desertion from 2013, and its former Managing Director asserting she was his personal hourly employee. The court found the Respondent's witnesses' evidence mutually contradictory on the pivotal question of the employment relationship. Applying section 2 of the Employment Act and Krystalline Salt, it held the Claimant was a term employee. On substantive fairness, the Respondent failed to prove desertion or any valid reason under sections 43 and 45(2), and on procedure, it did not comply with section 41; termination was therefore unfair. The court granted notice pay, three years' untaken leave (section 90 limitation barring older claims), service pay for eight years, unpaid holidays for January to August 2017 only (specific unparticularized holiday and off-day claims declined), house allowance for three years, compensation for unfair termination, and a Certificate of Service, with interest and costs to the Claimant. The general damages claim for discrimination was not awarded. Judgment was entered for the Claimant accordingly.

Key legal issues

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01

Nature of the contract of employment (piece work vs term contract)

Holding

The Claimant was a term employee of the Respondent, not a piece-rate worker

Reasoning

RW1 claimed piece-rate employment while RW2 denied the employment relationship entirely, a contradiction on a pivotal point evidencing lack of candidness. Applying section 2 of the Employment Act and Krystalline Salt, the evidence showed monthly pay of about Kshs 22,000, indicating a term contract for few daily hours.

p. 4
02

Whether termination was substantively fair

Holding

Termination was substantively unjustified; desertion was not proved

Reasoning

The employer bore the burden under sections 43 and 45(2) of the Employment Act. RW1's allegation of desertion from 2013 lacked specificity and no material showed efforts to reach the employee. Applying the desertion jurisprudence, the Respondent failed to discharge its burden.

p. 6
03

Whether termination was procedurally fair

Holding

Termination was procedurally unfair

Reasoning

Section 41 in mandatory terms requires the employer to inform the employee of the reasons, allow representation and consider it before terminating. The Respondent did not demonstrate adherence to this procedure.

p. 6
04

Entitlement to terminal dues

Holding

Notice pay, 3 years' untaken leave, 8 years' service pay, unpaid holidays Jan-Aug 2017, 3 years' house allowance, compensation of 5 months (per reasoning; orders state 10 months) and a Certificate of Service awarded

Reasoning

The employer is keeper of records under sections 10(3) and 74; it produced none to disprove the claims. Leave and house allowance limited to 3 years by section 90 limitation. Service pay allowed as no statutory exclusion under section 35(6) was shown. Compensation assessed under section 49(1)(c) and (4).

p. 7

Legal principles established

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  • An employer alleging desertion must prove efforts made to reach the employee before terminating on that ground
  • Whether employment is piece work or term contract is determined on the evidence; monthly payment indicates a term contract terminable by notice
  • Section 74 records obligations do not confer an automatic pass to judgment where an employer fails to produce records; a claimant must prove specifics

Court orders

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  1. 1.A declaration that the Claimant's termination of employment was unlawful and unfair
  2. 2.One month's salary in lieu of notice of Kshs 22,000.00
  3. 3.Annual leave accrued in 3 years but not utilized of Kshs. 46,200.00
  4. 4.Service pay (846.15 x 15 x 8) of Kshs. 101,538.00
  5. 5.Unpaid holidays between Jan-Aug 2017 (846.15x6) of Kshs. 5,076.90
  6. 6.House allowance (15% of 22,000/- x 3) of Kshs. 118,000.00
  7. 7.Compensation for unfair termination (10 months) of Kshs. 110,000.00
  8. 8.Interest on the above at Court rates from the date of Judgment until payment in full
  9. 9.The Respondent to bear the costs of the suit
  10. 10.The Respondent to issue the Claimant with a Certificate of Service within 30 days

Authorities

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Legislation

  • Employment Act 2007section 2
  • Employment Act 2007section 43
  • Employment Act 2007section 45(2)
  • Employment Act 2007section 41
  • Employment Act 2007section 44(4)(a) and (c)
  • Employment Act 2007section 10(3)
  • Employment Act 2007section 74
  • Employment Act 2007section 35(1)(c), (5) and (6)
  • Employment Act 2007section 28
  • Employment Act 2007section 90
  • Employment Act 2007section 31
  • Employment Act 2007section 49(1)(c) and (4)
  • Employment Act 2007section 51
  • Evidence Act, Cap 80notice to produce
  • Retirement Benefits Actregistered pension or provident fund scheme (as cited in section 35(6))
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (6)

  • Krystalline Salt Limited v Kwekwe Mwakele & 67 others
    [2017] eKLR
  • Julius Kyalo Malonza vs Ruth Osolo t/a Ereva Catering Services
    [2021] eKLR
  • Seabolo vs Belgravia Hotel
    [1997] 6 BLLR 829 (CCMA)
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
  • James Orwaru Nyaundi vs Kilgoris Klassic Sacco Limited
    [2022] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act 2007 (not expressly cited as a constitutional provision in the judgment)

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, "Shatora v Orange Garage for World Navi Co. Ltd (Employment and Labour Relations Cause 1770 of 2017) [2024] KEELRC 842 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/842/eng@2024-04-12

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