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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 2074 (KLR)

Wangari v Simba Fresh Produce Limited (Employment and Labour Relations Cause E036 of 2023) [2024] KEELRC 2074 (KLR)

Employment and Labour Relations Court
5 August 2024
3,643 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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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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In an undefended hearing before the Employment and Labour Relations Court at Nyeri, the claimant, formerly Human Resource Supervisor from 1 July 2021 and later Chief Operations Officer from January 2022, claimed he was verbally terminated on 4 July 2023 without notice, reasons or payment of dues. The respondent denied the claim, asserting the claimant served under a one-year fixed term contract that lapsed by effluxion of time, and closed its case without calling any witnesses. The court framed three issues: the nature of the contract, whether the termination was unfair, and entitlement to reliefs. Relying on clause 2.4 of the initial contract, which provided for fresh engagement on a permanent basis upon expiry, and on unrebutted payslips, clearance forms and terminal dues computation, the court held the January 2022 appointment was for an indefinite period. Applying sections 41, 43 and 45 of the Employment Act and Court of Appeal precedent, it found the dismissal was without valid reason or fair procedure and therefore unfair and unlawful. Under section 10(7), the burden of disproving the alleged Kshs. 150,000 salary fell on the employer, which produced no evidence. Judgment was entered for Kshs. 769,200, comprising one month's notice pay, unpaid June and 3 days' July salary, unpaid leave for 30.84 days, and two months' salary as compensation, plus a certificate of service, costs and interest at court rates, subject to statutory deductions. The claimed maximum twelve months' compensation was reduced to two months.

Key legal issues

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01

Whether the claimant's employment remained a fixed term contract or had become a contract of indefinite period

Holding

The parties mutually terminated the initial fixed term contract and entered a new indefinite-term engagement in January 2022 as Chief Operations Officer, per clause 2.4 providing for fresh engagement on a permanent basis

Reasoning

The claimant was competitively appointed Chief Operations Officer in January 2022, his payslips, clearance form and terminal dues computation reflected the new position, and the respondent called no witness to rebut this evidence. Clause 2.4 of the initial contract provided that upon expiry the employee would be engaged afresh on permanent contract basis, making the new appointment indefinite.

p. 5
02

Whether the termination was unfair and unlawful

Holding

The termination was for no valid reason and without fair procedure, hence unfair and unlawful under section 45 of the Employment Act

Reasoning

The claimant was dismissed verbally via WhatsApp without notice, valid reasons or a hearing. The respondent adduced no evidence, having closed its case without calling any witness. Following sections 41, 43, 45 and 47(5) and precedent, the employer must prove valid reason and fair procedure, which it failed to do.

p. 6
03

Whether the claimant's monthly salary at exit was Kshs. 25,000 or Kshs. 150,000

Holding

The claimant's monthly salary at the date of exit was Kshs. 150,000, based on payslips and the HR Manager's terminal dues computation which the respondent did not discredit

Reasoning

Under section 10(7), the employer bore the burden of producing the written contract for the Chief Operations Officer role, having returned the erroneous appointment letter to the employer. The respondent adduced no evidence, and the payslips and dues computation emanating from the respondent indicated a salary of Kshs. 150,000.

p. 7
04

Whether the claimant was entitled to the unpaid June 2023 salary and leave dues

Holding

Yes; the respondent's HR computation acknowledged the June salary and 30.84 leave days as payable, and no evidence showed the June salary was ever paid

Reasoning

The respondent's General Manager declined to approve the HR Manager's computation only on the ground that salary in lieu of notice was not payable; the respondent did not prove payment of June salary or discredit the computation, which acknowledged the leave days and salary as due.

p. 7

Legal principles established

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  • Where an employer fails to produce a written contract or prescribed particulars in legal proceedings, the burden of proving or disproving an alleged term of employment falls on the employer
  • Unfair termination of employment has two ingredients, namely a valid reason and fair procedure
  • Under a contract clause providing for fresh engagement on a permanent basis upon expiry of a fixed term, fresh appointment after the fixed term is for an indefinite period

Court orders

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  1. 1.Notice pay of Kshs. 150,000.00
  2. 2.Unpaid salary for June and 3 days of July 2023 of Kshs. 165,000.00
  3. 3.Unpaid leave (150,000/30 x 30.84) of Kshs. 154,200.00
  4. 4.Compensation for unfair termination (150,000 x 2) of Kshs. 300,000.00; total award Kshs. 769,200.00
  5. 5.Issuance of a certificate of service
  6. 6.Costs of the suit to the claimant
  7. 7.Interest at court rate from the date of the judgment
  8. 8.The award of damages is subject to statutory deductions

Authorities

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Legislation

  • Employment Actsection 10
  • Employment Actsection 10(3)(c)
  • Employment Actsection 10(7)
  • Employment Actsection 18
  • Employment Actsection 35
  • Employment Actsection 35(1)(c)
  • Employment Actsections 41 & 43
  • Employment Actsection 45(1) & (2)
  • Employment Actsection 47(5)
  • Employment Actsection 49
  • Employment Actsection 51(1)
  • Constitution of KenyaArticle 47
  • Fair Administrative Action Actnot specified
  • ELRC Procedure RulesRule 28(3)

Cases cited (10)

  • Trust Bank Limited vs Nakuru Paramount Universal Bank Limited and 2 others
    [2009] eKLR
  • Naima Khamis vs Oxford University Press (EA) Limited
    [2017] eKLR
  • Kenya Ports Authority v Munyao & 4 others
    (Petition E008 of 2023) KESC 112 (KLR) (CIV) 28 December 2023
  • Margaret A. Ochieng v National Water Conservation and Pipeline Corporation
    [2014] eKLR
  • Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Limited & Another
    [2012] eKLR
  • Francis Chire Chichi vs Amatsi Water Services Company Limited
    [2012] eKLR
  • Transparency International Kenya vs Teresa Carlo Omondi
    Civil Appeal No. 81 of 2018
  • George Musamali v G4S Security Services Kenya Ltd
    [2016] eKLR
  • Pius Machafu Isindu vs. Lavington Security Guards Limited
    [2017] eKLR
  • Kenfreight EA Limited v Benson K. Nguti
    [2016] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (ELRC Procedure Rules referenced); specific constitutional/statutory basis for jurisdiction not stated

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Wangari v Simba Fresh Produce Limited (Employment and Labour Relations Cause E036 of 2023) [2024] KEELRC 2074 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2074/eng@2024-08-05

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