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ELRCPartially AllowedELRC Cause No. 1397 of 2017· [2024] KEELRC 2154 (KLR)

Wahome & 19 others v Albert Kibera Karume t/a Solar Garden Members Club (Cause 1397 of 2017) [2024] KEELRC 2154 (KLR)

Employment and Labour Relations Court
26 July 2024
5,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan hotel employer that dismissed 20 workers verbally without notice or hearing lost the case and must pay compensation, notice pay and leave dues.

What this practically means

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Executive summary

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Twenty claimants, former employees of the Respondent in roles ranging from barman and cashier to General Manager and Accountant, sued for wrongful termination following a verbal dismissal on 7th February 2017, when the Respondent allegedly stated it lacked resources to pay salaries. They claimed twelve months' salary for unfair dismissal, unpaid leave, general damages, overtime, public holiday pay, house allowance, NSSF/NHIF dues, maternity/paternity leave, salary in lieu of notice and unpaid salary, totalling substantial sums per claimant. The Respondent filed a Reply but called no witness. The court framed two issues: whether the termination was unfair, and entitlement to reliefs. Relying on sections 43, 45 and 47(5) of the Employment Act, the court held the claimants established a prima facie case; the burden then shifted to the employer, which, tendering no evidence, failed to prove the reason for termination, rendering the termination deemed unfair, with the section 41 procedural requirements also unmet. On reliefs, the court insisted on specificity: overtime, public holiday, paternity and unpaid salary claims failed for want of particular dates; the underpayment claim failed absent evidence of applicable Wages Orders; and house allowance failed because salaries were consolidated. The court awarded each claimant a declaration of unfair termination, compensation under section 49(1)(c) at 2-6 months' gross salary, untaken leave pay and one month's salary in lieu of notice, with interest and costs. Judgment was delivered virtually under COVID-19 directives.

Key legal issues

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01

Whether termination was substantively and procedurally unfair

Holding

Termination was unfair - respondent proved neither reason nor procedure

Reasoning

The claimants gave uncontroverted evidence that they were dismissed verbally without notice or hearing, establishing a prima facie case under section 47(5). The burden then shifted to the employer under sections 43 and 45(2) to justify the termination. The respondent filed a reply but adduced no evidence, so failed to prove any reason for termination, which is deemed unfair, and the breach of section 41 procedural requirements stood unchallenged.

p. 27
02

Entitlement to the specific reliefs claimed

Holding

Only unpaid leave, one month's salary in lieu of notice and statutory compensation awarded; other heads failed for want of specificity and proof

Reasoning

The court stressed specificity in pleading reliefs. Overtime, public holiday, paternity leave and unpaid salary claims failed for lack of particularisation; the underpayment claim failed because no Wages Orders evidence was tendered; house allowance failed because the appointment letters provided a consolidated gross salary. Unchallenged evidence of untaken leave, lack of notice and sudden unfair termination supported the awarded heads.

p. 28
03

Treatment of unchallenged evidence where respondent calls no witness

Holding

Defence statement has no evidential value but claimant must still prove its case on a balance of probability

Reasoning

Relying on Kenya Power and Lighting Co Ltd v Nathan Karanja Gachoka, the court held that uncontroverted evidence must still be interrogated and must prove fault on a balance of probability. The claimants' evidence satisfied the prima facie threshold, after which statutory burdens shifted to the silent respondent.

p. 26

Legal principles established

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  • Where a respondent files a defence but calls no evidence, the statement of defence has no evidential value, yet the claimant must still prove its case
  • Burden of proving unfair termination is initially on the employee, who must establish a prima facie case, after which the burden shifts to the employer
  • Where the employer fails to prove the reason for termination, the termination is deemed unfair under section 43
  • Overtime claims must be pleaded with specificity as to the days worked

Court orders

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  1. 1.Declaration that the termination of the Claimants' employment was unfair
  2. 2.Compensation for unfair termination equivalent to 2-6 months' gross salary per claimant as per the schedule
  3. 3.Compensation for earned unutilized leave days per the schedule
  4. 4.One month's salary in lieu of notice to each claimant per the schedule
  5. 5.Interest on the awards at court rates from the date of judgment until payment in full
  6. 6.Costs of the suit, with instruction fee to be computed on the basis of the total amount awarded

Authorities

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Legislation

  • Employment ActSections 28, 35(1), 36, 41, 43, 45(2), 47(5), 49(1)(c), 74
  • Labour Institutions ActSection 48
  • Evidence ActCap 80 (notice to produce)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Regulation of Wages OrdersMinimum wage orders (general reference)

Cases cited (3)

  • Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another
    [2016] eKLR
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • James Orwaru Nyaundi vs Kilgoris Klassic Sacco Limited
    [2022] eklr
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance labour claim)

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, "Wahome & 19 others v Albert Kibera Karume t/a Solar Garden Members Club (Cause 1397 of 2017) [2024] KEELRC 2154 (KLR)", Case Analysis (2024). ELRC Cause No. 1397 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2154/eng@2024-07-26

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