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ELRCPartially AllowedNot stated in the judgment excerpt· [2024] KEELRC 2670 (KLR)

Maina v Bajrang Construction Limited (Cause 826 of 2016) [2024] KEELRC 2670 (KLR)

Employment and Labour Relations Court
31 October 2024
JRJames Rika
1,455 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that employers cannot dismiss injured workers without fair procedure, and foremen's testimony can prove employment even without written contracts.

What this practically means

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Executive summary

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The Claimant, a Mason earning Kshs. 12,750 monthly, sued the Respondent alleging unfair and unlawful termination in November 2015 following a workplace injury sustained on 3rd March 2015 in which he suffered a broken clavicle and permanent disability (assessed at 10%). He sought a declaration of unfair termination, a Certificate of Service, constitutional compensation, a Kshs. 100,000 fine under section 51(3) of the Employment Act, and various monetary reliefs totalling Kshs. 364,583. The Respondent denied employing him, contending he worked for B.K. Construction Limited, an independent subcontractor. The Court found on the testimony of the Claimant and his foreman, Peter Muhia, supported by the Respondent's payment of his medical bills, that an employment relationship existed with the Respondent. It held that the Respondent, unable to retain the Claimant due to his injury, should have released him on medical grounds or through a fair process, not abrupt termination at will, and declared the termination unfair. Most monetary heads failed for lack of evidence; the fine and constitutional compensation prayers were also declined because the Respondent had not been criminally tried and no constitutional violations were specified. The Court awarded notice pay of Kshs. 12,750 and four months' salary (Kshs. 51,000) as compensation for unfair termination, total Kshs. 63,750, with costs to the Claimant and interest at 14% per annum from the date of judgment until payment in full.

Key legal issues

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01

Existence of employer-employee relationship

Holding

The Claimant was the Respondent's employee as a Mason

Reasoning

The Claimant and his foreman Peter Muhia testified that the Claimant worked at the Respondent's site; the Respondent's Site Manager instructed Muhia to take the injured Claimant to hospital and the Respondent paid the medical bill. The subcontractor evidence was unconvincing. Foremen's evidence can fill the gap left by absence of written contracts.

p. 3
02

Unfair termination

Holding

Termination was unfair; the Respondent should have released the Claimant on medical grounds or followed fair procedure

Reasoning

The Respondent terminated without notice or hearing after the injury caused permanent disability, subjecting the Claimant to termination at will. Employment law requires a fair and lawful termination even where the employee cannot discharge his role.

p. 4
03

Remedies

Holding

Only notice pay and 4 months' salary compensation awarded; other heads failed for lack of evidence

Reasoning

With one year of service, no contribution to the termination, and 10% permanent disability, compensation equivalent of 4 months' salary was appropriate. The Court is confined to compensating unfair termination, not work injury.

p. 4

Legal principles established

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  • Employment law does not permit termination at will, even where an employee is injured and unable to perform
  • Courts should be receptive to foremen's evidence of employment for construction workers lacking written contracts

Court orders

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  1. 1.Declared that termination was unfair
  2. 2.Respondent to pay notice at Kshs. 12,750 and equivalent of 4 months' salary in compensation for unfair termination at Kshs. 51,000, total Kshs. 63,750
  3. 3.Costs to the Claimant
  4. 4.Interest at 14% per annum from the date of Judgment till payment in full
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; not expressly cited in the judgment

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, "Maina v Bajrang Construction Limited (Cause 826 of 2016) [2024] KEELRC 2670 (KLR)", Case Analysis (2024). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2670/eng@2024-10-31

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