Khamala v Robinson Security Ltd (Appeal E024 of 2023) [2024] KEELRC 2076 (KLR)
The bottom line
#Kenya's Employment Court ruled an 11-year worker wasn't casual or fixed-term, awarding notice pay and unpaid leave despite fast re-employment.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The appellant was employed under a contract of service for an indefinite period terminable by notice under section 35(1)(c) of the Employment Act, not as a casual or fixed term employee.
The respondent pleaded casual employment but produced unsigned, undated contracts whose signatures the appellant disowned. The respondent, as the party alleging the contracts, bore the burden of proving their authenticity under sections 107 and 109 of the Evidence Act and failed. The documents also contradicted the respondent's pleadings. The appellant proved continuous service from April 2009 to January 2021 on a monthly salary of Kshs.20,000 with monthly statutory remittances, defeating the fixed term and casual characterisation and the trial court's contrary finding.
Unfair and unlawful termination
The termination of the appellant's employment was unfair within the meaning of section 45 of the Employment Act.
Having found the appellant was on a contract terminable by notice, the respondent was obliged to prove a valid reason for termination and adherence to fair procedure. The respondent maintained the contract simply lapsed by effluxion of time and gave no reason or process. Following section 45 and the George Musamali decision on the two stages of termination, the respondent discharged neither limb, so the termination was unfair and the trial court erred in holding otherwise.
Reliefs: notice pay, accrued leave, certificate of service, compensation, house allowance, rest days, gratuity/severance
The appellant was entitled to one month's salary in lieu of notice, accrued untaken leave computed at 245 days (Kshs.163,333.33), and a certificate of service, but not compensation, house allowance, rest days pay, gratuity or severance.
Sections 35(1)(c) and 49(1) entitled the appellant to notice pay; section 51 entitled him to a certificate of service; section 28 entitled him to 21 days' leave per 12 months of continuous service, and the unproven leave records could not defeat the claim over 140 months. Compensation was refused because he secured comparable employment the next day (section 49(4)(f) and (g)); house allowance, rest days and gratuity/severance failed for want of proof, the wage having included housing and separation not being by redundancy.
Legal principles established
#- He who alleges must prove: the party alleging the existence and authenticity of a document bears the burden of proving the signature on it.
- An employer alleging a fixed term contract must prove the contract; continuous statutory remittances and monthly salary point to a contract terminable by notice under section 35(1)(c) of the Employment Act.
- Unfair termination requires the employer to prove both a valid reason and a fair procedure under section 45 of the Employment Act.
- On a first appeal the court re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses.
Court orders
#- 1.Declaration that the respondent unlawfully and unfairly terminated appellant's employment.
- 2.Respondent to pay the appellant salary in lieu of notice of Kshs.20,000.00.
- 3.Respondent to pay the appellant accrued leave of Kshs.163,333.33 (total award Kshs.183,333.33).
- 4.Costs of the appeal and the court below with interest at court rates from the date of the judgment.
- 5.The award is subject to statutory deductions.
- 6.Certificate of service entitlement under section 51 of the Employment Act.
- On appeal from
- Chief Magistrate's Court at Nyeri (ELRC)
- Nyeri Chief Magistrate ELRC No. E048 of 2021
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the Chief Magistrate's Court (ELRC Procedure Rules; appeal under the ELRC Act against the subordinate court's judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khamala v Robinson Security Ltd (Appeal E024 of 2023) [2024] KEELRC 2076 (KLR)", Case Analysis (2024). Nyeri Chief Magistrate ELRC Appeal No. E048 of 2021 (appeal against judgment in Nyeri Chief Magistrate ELRC No. E048 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2076/eng@2024-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.