Wahome & 19 others v Albert Kibera Karume t/a Solar Garden Members Club (Cause 1397 of 2017) [2024] KEELRC 2154 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether termination was substantively and procedurally unfair
Termination was unfair - respondent proved neither reason nor procedure
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.
Entitlement to the specific reliefs claimed
Only unpaid leave, one month's salary in lieu of notice and statutory compensation awarded; other heads failed for want of specificity and proof
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.
Treatment of unchallenged evidence where respondent calls no witness
Defence statement has no evidential value but claimant must still prove its case on a balance of probability
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.
Legal principles established
#- 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
#- 1.Declaration that the termination of the Claimants' employment was unfair
- 2.Compensation for unfair termination equivalent to 2-6 months' gross salary per claimant as per the schedule
- 3.Compensation for earned unutilized leave days per the schedule
- 4.One month's salary in lieu of notice to each claimant per the schedule
- 5.Interest on the awards at court rates from the date of judgment until payment in full
- 6.Costs of the suit, with instruction fee to be computed on the basis of the total amount awarded
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance labour claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.