Onyango v Bukuria Schools Limited (Appeal E077 of 2024) [2025] KEELRC 1049 (KLR)

The court reasoned that Section 3(1) applies the Act to all employees under a contract of service, Section 2 defines a contract of service as oral or written, and Section 8 recognises oral contracts. Reading Section 9(1) as rendering unwritten contracts unenforceable would be inconsistent with these provisions and would occasion injustice, since the duty to keep employment records lies with the employer under Section 74(1), and Section 10(7) shifts the burden of disproving terms to the employer who fails to produce a written contract.

The appellant produced payslips bearing the respondent's name, postal and email address, which the respondent did not contest. The respondent's witness admitted paying the appellant Kshs.1,000 daily without explaining the purpose. The respondent filed no witness statement or documents. The court affirmed the trial court's finding of an employment relationship but reversed its conclusion on enforceability.

Under Sections 43, 45 and 47(5) of the Employment Act the employer must prove valid and fair reasons and a fair procedure. The respondent's witness did not demonstrate how, when and why the parties separated. The appellant's uncontroverted evidence was that he was dismissed verbally upon requesting December 2022 salary, with no termination letter or certificate of service. An oral termination is legally recognised, so the unwritten contract did not affect the termination process.

Compensation was merited under Section 49, considering the 9-month tenure, absence of contribution to the termination, and unpaid December salary. House allowance was awarded at 15% of basic salary per Section 31 and the Grain Pro Inc authority. Service pay was awarded at 15 days per year worked by analogy with Section 40(1)(g), the percentage not being statutorily prescribed. A certificate of service issued under Section 51.