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ELRCPartially AllowedAppeal from Mombasa CMELRC No.642 of 2019· [2024] KEELRC 1400 (KLR)

Abeid v Portlink Transport Limited (Appeal E001 of 2022) [2024] KEELRC 1400 (KLR)

Employment and Labour Relations Court
16 May 2024
2,300 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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This is a first appeal to the Employment and Labour Relations Court at Malindi against the judgment of the magistrate's court (Mombasa CMELRC No.642 of 2019) delivered on 1 December 2021, in which the magistrate found unfair termination of a driver employed from 1 March 2011 to 1 August 2018 and awarded notice pay of Ksh.28,000 and two months' compensation of Ksh.56,000, but dismissed claims for severance pay, house allowance, rest days and public holidays. Neither party filed written submissions despite directions. On appeal, the court reiterated that it had a mandate to re-evaluate the record. It held that work records are a statutory duty of the employer under Section 10(7) of the Employment Act, 2007, and in their absence the court must believe the employee. The respondent's own officer admitted the termination notice was not filed, confirming a redundancy; while redundancy is a valid reason for termination, Section 40 must be strictly complied with, including payment of severance pay of at least 15 days' pay per completed year. The court found the statutory deductions finding erroneous, awarding severance of Ksh.98,000 for seven full years. Rest days pay of Ksh.60,023.60 was awarded as a continuing injury under Section 90, and accrued leave of Ksh.19,600 for 21 days. Claims for house allowance and public holidays failed for want of particularisation. The appeal was allowed in part, each party bearing its own costs of the appeal, with trial court costs as awarded.

Key legal issues

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01

Employer's duty to keep work records

Holding

Work records are a mandatory legal duty of the employer under Section 10(7); absent records, the claimant's word must be believed

Reasoning

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.

p. 3
02

Redundancy under Section 40

Holding

Redundancy is a valid reason for termination but the employer must strictly comply with Section 40, including personal notice and severance pay

Reasoning

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.

p. 3
03

Rest days and continuing injury

Holding

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

Reasoning

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.

p. 5
04

House allowance

Holding

Claim refused because the appellant failed to particularise the category of driver and thus the applicable minimum wage

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Notice pay Ksh.28,000
  2. 2.Compensation Ksh.56,000
  3. 3.Severance pay Ksh.98,000
  4. 4.Rest days Ksh.60,023.60
  5. 5.Accrued leave Ksh.19,600
  6. 6.Each party to bear the costs of the appeal; costs of the trial court as awarded

Authorities

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Legislation

  • Employment Act, 2007Section 40 (including 40(1)(g))
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Sections 8, 9, 10
  • Employment Act, 2007Sections 43(1), 43(2)
  • Employment Act, 2007Sections 45(1), 45(2)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 27
  • Employment Act, 2007Section 28 (including 28(4))
  • Employment Act, 2007Section 90
  • Labour Relations ActSection 2 (definition of redundancy)
  • Wage Orders, 2018minimum wage for drivers in Mombasa

Cases cited (5)

  • Samwel Shilumba Kwayumba versus Tushar Shar Cause No.484 of 2013
    Cause No.484 of 2013
  • Francis Mbugua Muthiga v Echuka Farm Limited
    [2018] eKLR
  • Abigael Jepkosgei Yator & another v China Hanan International Co. Ltd
    [2018] eKLR
  • Mayamba & 5 others & another v Feed the Children Kenya & another Cause 152 of 2014 & 1227 of 2015 (Consolidated)
    [2023] eKLR
  • Kenya Airways Limited versus Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
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

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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, "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.