Amee Holdings Limited v Okwiri (Appeal E056 of 2023) [2024] KEELRC 1180 (KLR)
The bottom line
#The Employment Court upheld wage and house allowance awards against Amee Holdings but cancelled a 12-month compensation award because the ex-employee couldn't prove unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved unfair termination
The Respondent did not discharge the burden under section 47(5); he did not state the date or month of the alleged verbal termination or identify who terminated his employment.
The employee bears the initial threshold burden under section 47(5) of establishing that unfair termination occurred before the employer must justify it. The claim, witness statement and oral testimony omitted the date or month of the alleged verbal termination and the identity of the manager or agent who communicated it. Without these, the very low threshold was not met. The trial magistrate erred by skipping this first-stage inquiry and proceeding straight to whether the employer satisfied sections 41 and 45. That part of the judgment was set aside.
Underpayments
The award of underpayments was upheld; the magistrate did not err.
Section 9 of the Employment Act requires an employer to issue a written contract stating designation and remuneration. The Appellant issued no such contract. Its own witness conceded the Respondent was engaged in a different capacity from 2019 without disclosing what that capacity was. Under section 10(7), the court therefore accepted the Respondent's oral testimony that he was a machine operator paid below the prescribed minimum wage of Kshs 18,319/- under the Regulation of Wages (General)(Amendment) Order, 2018.
House allowance
The award was upheld since the Appellant did not show housing was provided or that the wage was consolidated.
Under section 31 of the Employment Act, an employer must provide housing or a house allowance unless the wage is consolidated. The Appellant produced no records showing it housed the Respondent or that his wages were consolidated, so the finding that the magistrate did not err in allowing that head of claim was confirmed.
Legal principles established
#- On a first appeal, the court must re-evaluate the evidence and reach its own conclusions, making due allowance for not having seen or heard the witnesses.
- Under section 47(5) of the Employment Act, the employee bears the initial burden of establishing that unfair termination occurred before the employer is called upon to justify the termination.
- Where an employer fails to issue a written contract as required by section 9 of the Employment Act, the court accepts the employee's oral testimony on wages under section 10(7).
Court orders
#- 1.The part of the judgment finding that the Appellant unfairly terminated the Respondent's employment and awarding compensation is set aside, and substituted with a finding that the Respondent did not prove unfair termination
- 2.The judgment of the Senior Principal Magistrate is otherwise confirmed (underpayments and house allowance awards stand)
- 3.Each party to bear their own costs of the Appeal
- 4.The Respondent to have costs before the Senior Principal Magistrates Court
- On appeal from
- Senior Principal Magistrate's Court
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction under the Employment Act / ELRC Act over a decision of the Senior Principal Magistrate (not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amee Holdings Limited v Okwiri (Appeal E056 of 2023) [2024] KEELRC 1180 (KLR)", Case Analysis (2024). Not stated in the excerpt (Memorandum of Appeal lodged 16 October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1180/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.