Onyiego v Robinson Investment Limited (Cause 21 of 2016) [2024] KEELRC 2863 (KLR)

The claimant relied on the definition of employee in Section 2 of the Employment Act including an apprentice to argue his training period counted. The court noted the claimant applied for a job on 27th November 2013 and was subjected to training for assessment before deployment on 5th December 2013. It accepted the respondent's position that during training he was under assessment and not yet an employee.

The court found the claimant deserted duty for lack of transport to the assigned post, giving the respondent a genuine ground for dismissal under Section 43(2). However, no show cause letter was issued, no particulars of the alleged desertion were given, and no disciplinary hearing was conducted. Failure to inform the claimant of the allegations violated Section 41 of the Act and Article 47 of the Constitution and the Fair Administrative Action Act.

The respondent produced no proof that the claimant's work stations were outside the municipality. RW1 conceded the municipal minimum wage figures (Kshs10,116.15 in 2013; Kshs11,330.10 in 2015). The minimum wages were exclusive of housing allowance, so 15% was added, and underpayment tabulated from December 2013 to 11th January 2016 against the actual gross pay of Kshs8,500.

The claimant testified he worked 12-hour days. Sections 9, 10 and 74 of the Employment Act place the duty to keep and produce employment records on the employer. In the absence of muster-rolls or records to dislodge the claimant's allegations, his evidence stood unchallenged. Tabulation was done from December 2013 to 11th January 2016 at the applicable minimum wage rates.

The claimant worked about three years and admitted he failed to report to his assigned post because he had no transport, thereby contributing to his dismissal. The court held this was not an appropriate case for maximum compensation and awarded three months' salary calculated on Kshs13,029.62.