Kenyanya v Shajanand Holdings Ltd (Appeal E024 of 2023) [2024] KEELRC 1312 (KLR)
The bottom line
#A Kenyan court confirmed that employers who lose or never issue written contracts bear the burden of proving employment terms, and can be penalised for unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Employment relationship without a written contract
The Principal Magistrate erred in finding no employment relationship; the NSSF Statement of Account was sufficient secondary evidence of employment
Section 9(2) of the Employment Act obliges the employer to prepare and have the contract signed, and section 10(7) places the burden of producing the contract in proceedings on the employer. On failure, the burden shifts to the employer to disprove employment. The NSSF statement showing the Appellant as an employee of the Respondent was unchallenged secondary evidence sufficient to establish the relationship.
Unfair termination
Termination was unfair: no written notice under section 35(1)(c) and no hearing under section 41; the Respondent led no evidence
The Appellant, paid monthly, was entitled to at least 28 days' written notice under section 35(1)(c) and to notification of reasons and an opportunity to be heard under section 41. The Respondent adduced no evidence at trial to demonstrate compliance with either requirement, so the termination of 6 February 2021 was substantively and procedurally unfair.
Quantum of compensation
Seven months' gross wages (Kshs 91,000/-) as compensation for unfair termination, plus one month's notice pay (Kshs 13,000/-)
The Appellant's uncontroverted testimony was that he served from 2014 to 2021 earning Kshs 13,000/- monthly. Considering the length of service, the equivalent of seven months' gross wages was just and appropriate. Accrued leave was not awarded for want of evidential foundation.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the conclusions of the trial court should stand
- Where the employer fails to produce a written employment contract as required by sections 9(2) and 10(7) of the Employment Act, the burden shifts to the employer to disprove the existence and terms of the employment, and the court may rely on secondary evidence to infer an employment relationship
Court orders
#- 1.Judgment of the Principal Magistrate set aside and substituted with a finding that the Appellant was an employee of the Respondent and that his employment was unfairly terminated
- 2.Award of compensation equivalent to 7 months' gross wages of Kshs 91,000/-
- 3.Award of pay in lieu of notice of Kshs 13,000/- (total Kshs 104,000/-)
- 4.Claim for accrued leave declined
- 5.No costs of the appeal to the Appellant (for late filing of submissions), but costs before the Subordinate Court awarded to the Appellant
- On appeal from
- Principal Magistrates Court at Winam
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court ( Memorandum of Appeal filed in the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenyanya v Shajanand Holdings Ltd (Appeal E024 of 2023) [2024] KEELRC 1312 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1312/eng@2024-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.