Abeid v Portlink Transport Limited (Appeal E001 of 2022) [2024] KEELRC 1400 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Employer's duty to keep work records
Work records are a mandatory legal duty of the employer under Section 10(7); absent records, the claimant's word must be believed
Sections 8, 9 and 10 of the Employment Act impose a mandatory duty on the employer to issue a written contract and keep records. The respondent filed no work records, payment statements or the notice of redundancy. Its own officer admitted the notice was not filed. The unchallenged evidence of the appellant that his employment was terminated on account of reduced work therefore stands, and the employer suffers the disadvantage.
Redundancy under Section 40
Redundancy is a valid reason for termination but the employer must strictly comply with Section 40, including personal notice and severance pay
Following Kenya Airways v Aviation & Allied Workers Union, Section 40(1) is procedural and must be read with sections 43, 45 and 47(5). A non-unionised employee must receive personal notice, which may be paid in lieu. The respondent admitted redundancy but produced no records of compliance, so the termination was unfair and severance pay at 15 days per completed year (7 years at Ksh.28,000) became due.
Rest days and continuing injury
Rest day pay is due under Section 27 and, being a continuing injury, unpaid dues are claimable at the end of employment under Section 90
Every employee is entitled to a rest day each week, and the employer bears the duty to file records showing how the right was enjoyed. Absent records, the claim is not time-barred because it is a continuing injury, allowing computation of 52 weeks of unpaid rest days at the daily wage under the 2018 Wage Orders.
House allowance
Claim refused because the appellant failed to particularise the category of driver and thus the applicable minimum wage
The 2018 Wage Orders prescribe different minimum wages for drivers of light, medium and heavy vehicles in Mombasa. The appellant did not state which category of vehicle he drove, so he failed to particularise the claim. This being a matter of fact for the claimant, the trial court's finding could not be faulted.
Legal principles established
#- Where an employer fails to keep and produce work records, the court must believe the employee's word as to the terms and events of employment
- Payment of statutory deductions does not affect payment of severance pay; it can only relate to service pay
- An employee declared redundant is entitled to severance pay of not less than fifteen days pay for each completed year of service under Section 40(1)(g) of the Employment Act
- An employee cannot accumulate annual leave beyond 18 months unless with the employer's approval
Court orders
#- 1.Notice pay Ksh.28,000
- 2.Compensation Ksh.56,000
- 3.Severance pay Ksh.98,000
- 4.Rest days Ksh.60,023.60
- 5.Accrued leave Ksh.19,600
- 6.Each party to bear the costs of the appeal; costs of the trial court as awarded
- On appeal from
- Mombasa CMELRC (Magistrates' Court, Employment and Labour Relations)
- 642 of 2019
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the magistrate's court (CMELRC); court exercising power to re-evaluate the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abeid v Portlink Transport Limited (Appeal E001 of 2022) [2024] KEELRC 1400 (KLR)", Case Analysis (2024). Appeal from Mombasa CMELRC No.642 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1400/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.