Transport Workers Union v Greenline Company Limited (Cause E447 of 2023) [2025] KEELRC 3761 (KLR)

-Monthly underpayment – Kshs. 19,448.15 pm x 12 months = Kshs. 233,857.80. f) 2. Certificate of service – within section 51 of Employment. The Respondent filed a Statement of Response dated 29th June 2023 denying any employment relationship with the grievant and prayed for the suit to be dismissed with costs. Facts. 3. The Claimant’s case was that the Claimant was employed by the Respondent as a Bus driver (Heavy Commercial Vehicle) in July 2011. He worked until 7th September 2022 when he was instructed to drive his allocated bus to the Respondent’s yard for replacement of the old body. Thereafter he was not assigned any other duties despite several visits to the Respondent ofices and also with the intervention by the Claimant. 4. On 24th November 20232, the Claimant reported the matter to the Cabinet Secretary for Labour and a conciliator was appointed. The Claimants case was that the Respondent failed to attend three conciliation meetings and the conciliator recommended that the grievant be paid his terminal dues and be issued with a Certificate of Service or the matter be referred to this Court. 5. The Respondent failed to pay the grievant his terminal dues and the Claimant filed this suit. It averred that the grievant employed by the Respondent for a monthly basic salary of Kshs. 20,000/- instead of minimum basic salary of Heavy Commercial driver being Kshs. 34,302.75. The grievant was also not paid house allowance which was 15% of the Basic salary. He filed National Transport Safety Authority Badges as evidence of his employment. 6. The Respondents reiterated that it never employed the grievant as alleged and denied that he was instructed to take any bus to any yard for replacement of its old body. It averred that National Transport Safety Authority Badge was not evidence of its employment relationship with the grievant. Finally it averred that the conciliator exceeded his mandate by the aforesaid recommendations. 7. During the hearing, the grievant testified as CW1. He adopted his written statement dated 4th May 2023 as his evidence in chief and produced a bundle of 9 documents as exhibits. He maintained that he was employed by the Respondent who later dismissed him. He was surprised to see the Respondent’s defence denying that it had employed him. 8. He further stated that, he was employed as a driver of Heavy Commercial Vehicle (a bus) and his salary was under paid. He prayed for the reliefs sought contending that he was sufiering at home. 9. In cross-examination he contended that he was employed from 22nd July 2011 and cited his National Transport Safety Authority Badges as the evidence of his employment by the Respondent. He admitted that he only produced National Transport Safety Authority Badges for 2019 -2022 and contended that he was given the Badges by his boss. He averred that he signed a contract of employment but the employer retained it. 10. He further contended that the Manifest dated 14th October 2021 was another evidence that he was employed by the Respondent as it indicated him as the driver. He admitted that the manifest is for Greenline Safaris but he had sued Greenline Company Limited. He further admitted that the National Social Security Fund statement he produced indicated his employer as National Oil Corporation (Wesley Kipchumba Korir). He also admitted that his salary was being paid through the bank but he had not filed any bank statement. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3761/eng@2025-12-15 2

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11. The Respondent called its General Manager Mr. Lazarus Thuo as RW1. He adopted his written statement dated 8th December 2023 as evidence in chief and produced three documents as exhibits. He denied that the Respondent had employed the Claimant as alleged. He stated that the manifest produced by the Claimant indicated his employer as Greenline Safaris while the National Social Security Fund statement indicated the employer as Kipkorir. He further stated that the Respondent pays salaries through bank but the Claimant did not produce any bank statement. 12. In cross examination RW1 stated that National Transport Safety Authority Badges can be made anywhere. He further stated that the Respondent’s manifest are prepared by the Secretary and they always bear oficial stamp. He however, admitted that the Respondent did not plead that the Badges and the manifest were fake. He maintained that the manifest produced does not have the Respondents rubber stamp. He reiterated that the Claimant was never employed by the Respondent. 13. After the hearing, the two sides filed written submissions. Having considered the pleadings, evidence and submissions, the following issues fell for determination:a. Whether the grievant was employed by the Respondent as alleged. b. Whether the employment was unfairly terminated by the Respondent. c. Whether the Claimant is entitled to the reliefs sought. Analysis Employment relationship. 14. The CW1 contended that he was employed by the Respondent and produced copies of National Transport Safety Authority Badges, manifest and National Social Security Fund statement. The RW1 stated that the said documents did not indicate that the grievant was employed by the Respondent but other parties. 15. I have carefully considered the evidence adduced. The Claimant produced copies of National Transport Safety Authority Badges and manifest indicating the grievant as driver for the Respondent. RW1 alleged that the said badges and manifest can be made anywhere but admitted that the Respondent did not plead in its defence that the Badges were fake. I take note that the standard of proof in civil suit, is on a balance of probability and not beyond reasonable doubt. Consequently, having considered the National Transport Safety Authority Badges and the manifest dated 14th October 2021 I find and hold that the Claimant has proved on a balance of probability that the grievant was employed by the Respondent as a Bus driver. Termination of the employment 16. The CW1 contended that on 7th September 2022 he was told to drive the bus he was assigned to the Respondent’s yard for replacement of the old body. Thereafter he was never assigned any other duty despite several visits to the ofice and demand letters from the union. 17. The Respondent did not rebut the said evidence but merely denied the employment relationship Section 45 (2) of the employment Act provides that:“ (2) (2) A termination of employment by an employer is unfair if the employer fails to provea. that the reason for the termination is valid; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3761/eng@2025-12-15 3

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b. c. 18. i. related to the employee’s conduct, capacity or compatibility; or ii. based on the operational requirements of the employer; and that the employment was terminated in accordance with fair procedure.” In this case the Respondent did not produce any evidence to discharge the above burden of proof. In George Musamali v. G4S Security Services Kenya Ltd [2016] eKLR, where the court held that:“ 14. 19. that the reason for the termination is a fair reason- A termination of employment takes two stages. First there must be a valid and justifiable reason for termination and once this is established, the termination must be carried out in accordance with the procedure laid down in the employers’ human resource manual or as set out in the Employment Act or both. The most important thing to be ensured is that there is a valid or justifiable reason for termination and that the termination must be conducted by following a fair procedure. This includes furnishing the employee with the charges he or she is facing and afiording them an opportunity to defend themselves. It does not matter whether the employee’s guilt is apparent on the face of the record. He or she must be heard no matter how weak or useless his or her defence might seem to be. However, the conduct of the disciplinary hearing does not have to take the rigour of a Court trial. It sufices that the employee was notified of the charges and afiorded an opportunity to respond before the decision to dismiss is made.” Having found that the Respondent did not discharge the burden of proof of valid reason for the termination and fair procedure, I hold that the Claimant has proved unfair and unlawful termination of the grievants employment by the Respondent on 1st September 2022. Reliefs. 20. The Claimant prayed for an order that the grievant lost his employment through unfair redundancy. It further prayed for severance benefits under section 40 (1) (e) – (g) of the Employment Act including one month salary in lieu of notice, unpaid salary for October 2022, accrued leave of 210 days, severance pay for 10 years served, under payment of waged as a bus driver, and Certificate of Service. 21. The Claimant was not represented by counsel and therefore it may have failed to plead its claims properly. In my view the pleadings and the evidence tendered support a case of constructive dismissal and not redundancy. Consequently I find and hold that the Claimant has not proved a case of redundancy and therefore the claim for severance pay fails. 22. However I allow the Claim for one month salary in lieu of notice since the Respondent never served grievant one month notice prior to the termination as required under section 35 (1) (c) of the Employment Act. The Claimant was a Bus driver which under the law is classified as Heavy Commercial Vehicle. Under the General Wage Order, 2022, the minimum monthly salary for Heavy Commercial Vehicle driver was Kshs. 34,302.75. Consequently I award the Claimant Kshs. 34,302.75/- as one month salary in lieu of notice. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3761/eng@2025-12-15 4

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23. The prayer for salary for October 2022 was not rebutted by the Respondent. I therefore award the Claimant salary for October 2022 being Kshs. 34,302.75/- 24. The Claimant prayed for leave for ten years totaling to 210 days. He then calculated the value using the salary as at 2022. Even though the Respondent did not adduce any evidence to rebut that claim, I find the same to be exaggerated and lacking in material particulars. Therefore I award the leave for 2019 to 2022 as the period served, based on the National Transport and Safety Authority Badges produced. 25. Since the Claimant did not produce evidence to prove the minimum basic salary for 2019 – 2021, I will assess the leave based on the salary of Kshs. 20,000/-while the leave for 2022 will be based on the salary of Kshs. 34,302.75/-. Hence Kshs. 20,000 x 3 x 21/30 = Kshs. 42,000/- and Kshs. 34,302.75 x 21/30 = Kshs. 24,011.92/- equal to Kshs. 66,011.92/- 26. As regards salary underpayment, I have already made a finding of fact that the Claimant did not adduce evidence to prove that the grievant’s salary upto 2021 was under paid. The only evidence produced is General Wage Order for 2021 which took efiect on 1st May 2022. Therefore I award salary underpayment for May – October 2022 based on the minimum basic salary of Kshs. 34,302.75/- 27. The correct gross salary was the basic salary plus house allowance. House allowance under the Regulation 4 of the Regulation of Wages and conditions of service is 15% of the basic salary. Hence Kshs. 34,302.75 x 15% = Kshs. 5,145.41/- plus Kshs. 34,302.75/- totaling to a Kshs. 39,448.15/- gross pay per month. The underpaid salary was therefore Kshs. 39,448.15 – 20,000 = Kshs. 19,448.15 x 6 months = Kshs. 116,688.90/- 28. The Claim for Certificate of Service is granted since the grievant served for over four consecutive weeks, and therefore under section 51 of the Employment Act he was entitled to the certificate. Conclusion 29. I have found that the grievant’s employment was not terminated through redundancy as alleged. I have further found that the Claimant is entitled to the terminal dues highlighted above. Consequently I enter judgment for the Claimant as against the Respondent as follows:a. Notice………………………….Kshs. 34,302.75/- b. Unpaid salary…………………Kshs. 34,302.75/- c. Leave…………………………..Kshs. 66,011.75/- d. Salary underpayment………..Kshs. 116,688.90/Total Kshs. 251,306.32 e. Certificate of Service. f. The award is subject to statutory deductions. g. The Claimant is awarded costs plus interest at court rate from the date of filing the suit. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 15TH DAY OF DECEMBER, 2025. ONESMUS MAKAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3761/eng@2025-12-15 5

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Appearance: Okato for Ojienda for the Respondent Ndege for the Claimant https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3761/eng@2025-12-15 6

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