Samuel Ochieng Atinda v Nakuru Express Supplies & Services Ltd [2015] KEMC 2 (KLR)
The bottom line
#A Kenyan truck driver fired without a hearing won compensation, but his other claims failed because he filed them over a year late.
What this practically means
#Executive summary
#Key legal issues
#Whether the salary was inclusive of house allowance
The offer letter specified a basic salary only; the Respondent did not provide housing, so house allowance was not included
The offer letter provided a 'basic salary' with a duty allowance only when outside the workstation. Section 9 of the repealed Employment Act and section 28 of the Employment Act, 2007 make housing or a house allowance a basic minimum right. The Respondent's witness claimed a gross wage, but the clear contractual words prevailed and no housing was suggested to have been provided.
Whether the Claimant was dismissed or absconded
The defence of abscondment was rejected; the Claimant was dismissed
The Respondent pleaded abscondment but its witnesses testified the Claimant was dismissed for rudeness, and at various points cited siphoning of fuel and poor performance. The irreconcilable versions defied common sense, so the Court rejected the abscondment defence and found a dismissal.
Whether the dismissal was unfair
The summary dismissal was procedurally unfair; no hearing was shown to have been held
Sections 41 and 45(2)(b)(c) of the Employment Act, 2007 require procedural fairness before termination. The Respondent did not suggest the Claimant was informed of the allegations or heard. Procedural unfairness being established, the Court found it unnecessary to examine validity of reasons under sections 43 and 45.
Whether the Claimant was underpaid as a truck driver
The Claimant became a truck driver in 2006 and was underpaid against prescribed minimum wages, though the claim was statute barred
The employment letter lacked a job description, and the employer issued no statement of particulars after the change of duties as required by sections 10(2) and 13 of the Employment Act, 2007. Under section 10(7), the employee's account prevailed over the employer's, so the Court found he became a driver in 2006 and should have earned the prescribed minimum wages.
Limitation under section 90 of the Employment Act, 2007
Claims for underpayments, leave and house allowance were filed outside the one-year limitation period and are statute barred
Each underpayment is a distinct cause of action; the last underpayments were for 2011, so suit should have been filed by end of 2012. Leave and house allowance were continuing injuries requiring suit within one year of cessation (by February 2013). The memorandum of claim filed on 7 November 2013 was out of time.
Outstanding leave
The Claimant took leave in 2011 only; the employer's failure to keep records meant leave for other years was presumed untaken, though the claim was ultimately statute barred
Sections 10(3) and 74 of the Employment Act, 2007 place the responsibility of keeping employment records on the employer. The Court found the Claimant went on leave in 2011 but not other years, holding him entitled to encashment for 2008–2010 at prescribed minimum wages; however the claim failed as statute barred.
Remedies for unfair dismissal
Compensation of 7 months' gross wages (Kshs 129,675/-) awarded considering length of service; notice pay refused as wages for January to March 2012 had been paid
Having served about 8 years and been summarily dismissed without procedure, the Claimant was awarded the equivalent of 7 months gross wages at the gross minimum wage of Kshs 18,525/-. Notice pay was declined because he did not deny being paid wages for January to March 2012, which the Respondent said was pay in lieu of notice.
Legal principles established
#- Provision of housing accommodation or payment of house allowance is a basic minimum statutory right of an employee; a contract expressing a 'basic salary' excludes an element for rent unless housing was in fact provided
- Procedural fairness (notification of allegations and a hearing) is an essential requirement before termination of employment under sections 41 and 45 of the Employment Act, 2007; its absence renders a dismissal unfair
- Where the employer's pleadings and witnesses advance irreconcilable reasons for termination, the defence is rejected
- Where an employer fails to keep records of job description changes and leave, and the employee's word runs counter to the employer's, section 10(7) of the Employment Act, 2007 favours the employee's account
- Under section 90 of the Employment Act, 2007, each underpayment is a distinct cause of action and claims for underpayments, leave and house allowance must be brought within one year of cessation
Court orders
#- 1.Respondent to pay the Claimant 7 months wages compensation of Kshs 129,675/- for unfair summary dismissal
- 2.Heads of claim for underpayments, leave, house allowance and notice pay dismissed
- 3.Claimant to have costs of the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Ochieng Atinda v Nakuru Express Supplies & Services Ltd [2015] KEMC 2 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2015/2/eng@2015-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.