Eric Musa Oruori v Mary Wambui Kang’ethe T/A New Neem Supermarket [2014] KEELRC 1495 (KLR)
The bottom line
#A Kenyan supermarket was ordered to pay a security guard over Kshs.130,000 after it fired him while he recovered from being injured at work.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether there is sufficient proof of a relationship between claimant and Respondent
- 2.whether claimant was unfairly terminated
- 3.whether he is entitled to the reliefs sought
Key legal issues
#Proof of employment relationship
Employment relationship proved on a balance of probabilities despite respondent's non-attendance, corroborated by medical evidence.
The respondent was served with hearing notices but never appeared or filed a response. The claimant's testimony was corroborated by his medical history showing treatment for injuries sustained in an attack at work at 3 am. With no contrary evidence, the court found the employment relationship established on a balance of probabilities.
Unfair termination
Verbal dismissal after work injury was unfair under section 45 of the Employment Act.
The claimant returned to work after being injured by thugs at 3 am during his duties, losing a finger, and was told there was no work for him. The dismissal was verbal and without lawful reason, breaching section 45 of the Employment Act. The respondent also failed to report the injury under the Work Injury Benefits Act.
Basis for computation of remedies
Court adopted statutory minimum wage of Kshs.6,893 plus 15% house allowance (Kshs.7,927) rather than the pleaded Kshs.5,500.
Although the claimant pleaded a salary of Kshs.5,500, the court took judicial notice of section 48 of the Labour Institutions Act and the minimum wage for night watchmen under the Regulation of Wages (Amendment) Order, 2009, adopting Kshs.6,893 plus 15% house allowance as the basis for all awards.
Quantum of compensatory damages
12 months' salary awarded as compensation, considering length of service and the unreported work injury.
In assessing compensation the court considered the claimant's length of service and the circumstances of termination, particularly that he was injured at work, lost a finger, and the respondent failed to report the injury under the Work Injury Benefits Act for compensation purposes. This warranted the maximum-equivalent award of 12 months' gross salary, Kshs.95,124.
Legal principles established
#- Where a respondent is served and fails to controvert the claimant's allegations, the court may find employment proved on a balance of probabilities.
- Verbal dismissal following an injury sustained at work, without reason, is unfair termination under section 45 of the Employment Act.
Court orders
#- 1.One month's salary in lieu of notice of Kshs. 7,927/=
- 2.Leave pay of Kshs. 12,022.60 for 45.5 days
- 3.Service pay at 15 days for each year for the 2 years worked at Kshs.7,927/=
- 4.Compensatory damages of 12 months' salary in the sum of Kshs.95,124/=
- 5.Costs of the suit to the Claimant
- 6.Interest on decretal sum from date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act and the Labour Institutions Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Respondent having been served and failed to controvert this allegation by the claimant I find on a balance of probabilities that the claimant was employed by the Respondent.
Having been dismissed verbally following his injury in an attack while at work, the termination of employment of the claimant was unfair within the provisions of section 45 of the Employment Act.
For these reasons I award the Claimant 12 months salary as compensation in the sum of Kshs.95,124/=.
The Claimant shall also have costs of this suit and interest on decretal sum from date of judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eric Musa Oruori v Mary Wambui Kang’ethe T/A New Neem Supermarket [2014] KEELRC 1495 (KLR)", Case Analysis (2014). Memorandum of Claim dated 14th October 2011, filed 18th October 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1495/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.