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ELRCPartially AllowedCause No. 1771 of 2014

Milionzya Sammy v Twiga Construction Limited [2018] KEELRC 39 (KLR)

Industrial Court of Kenya
20 December 2018
1,970 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, Milionzya Sammy, was engaged as a carpenter by the respondent, Twiga Construction Limited, at Dagoretti Site, allegedly earning Kshs.700 per day paid weekly. He claimed that on 20th May, 2014 he was summoned and told there was no work for him and that his services were no longer required, amounting to summary and constructive dismissal without notice, valid reason or a hearing. He sought declarations of unfair dismissal, one month's salary in lieu of notice, leave pay, service pay, twelve months' compensation and interest, totaling Kshs.304,500. The respondent denied employment, contending it had subcontracted the labour component to Wamwetu Enterprises, and that the claim had been assessed at Kshs.35,000 and forwarded to the Ministry of Labour. The court, addressing a joinder issue, confirmed only Causes 1771/2014 (lead) and 1772/2014 remained live after other consolidated causes were dismissed for want of prosecution. On the merits, the court found the claimant's case more probable: he received instructions directly from the respondent, the respondent's own advocate correspondence confirmed employment, and the respondent's payment of the claim through the labour office estopped it from denying the employment relationship. The summary dismissal was held unfair and unlawful for want of valid reason and breach of the hearing requirements of sections 41, 43, 45 and 46 of the Employment Act, 2007. The claim was allowed with an award of Kshs.178,500.00 comprising notice, six months' compensation, leave pay and service pay, with costs borne by the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant was an employee of the respondent
  2. 2.Whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful
  3. 3.Whether the claimant is entitled to the relief sought
  4. 4.Who bears the costs of this claim

Key legal issues

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01

Whether the claimant was an employee of the respondent or of the subcontractor Wamwetu Enterprises

Holding

The claimant was an employee of the respondent, not the subcontractor

Reasoning

The court found the claimant's case more practical and probable. He received instructions directly from the respondent, and the respondent's own advocate correspondence confirmed the employment position. The respondent's conduct in purporting to pay the claim through the labour office contradicted its claim that Wamwetu Enterprises was the employer, and estopped it from relying on the subcontract clause.

p. 3
02

Whether the termination was wrongful, unfair and unlawful

Holding

The summary dismissal was unfair and unlawful for lack of valid reason and failure to afford the claimant a hearing

Reasoning

The claimant was ordered to leave the respondent's premises as his services were no longer required, with no notice or opportunity to be heard. Sections 41, 43, 45 and 46 of the Employment Act, 2007 mandate substantive and procedural fairness, requiring the employer to prove a valid and fair reason and a fair procedure, none of which was demonstrated.

p. 3
03

Whether the claimant is entitled to the relief sought

Holding

Having won on unlawful termination, the claimant is entitled to relief, awarded at six months' compensation plus notice, leave and service pay

Reasoning

The court held that success on the unlawful termination claim entitled the claimant to relief. It awarded one month's salary in lieu of notice, six months' compensation (reduced from the twelve months claimed), leave pay for the one-year service period, and service pay calculated at 15 days' salary per completed year, totaling Kshs.178,500.00.

p. 3
04

Joinder and consolidation of the causes

Holding

Only Causes 1771/2014 and 1772/2014 remain live, with 1771/2014 as the lead file

Reasoning

Causes 1768/2014, 1769/2014 and 1770/2014 had been dismissed for want of prosecution on 11th July 2018, so the claimant's submissions purporting to cover five causes were narrowed. The court preferred the earlier consolidation record of Ndolo, J. over the later record of Wasilwa, J., leaving two living causes with 1771/2014 as lead.

p. 2

Legal principles established

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  • An employer must prove both a valid and fair reason for termination and that fair procedure was followed
  • The presence of multiple legal entities in a group of companies should not be used to defeat employees' employment rights
  • Where an employee is not heard before termination, the termination is unfair regardless of the alleged offence

Court orders

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  1. 1.One (1) month's salary in lieu of notice of Kshs.21,000.00
  2. 2.Six (6) months' compensation for unlawful termination of employment, 6 x Kshs.21,000.00, being Kshs.126,000.00
  3. 3.Payment in lieu of untaken and unpaid leave for the entire period of service being Kshs.21,000.00
  4. 4.Service/Gratuity calculated at 15 days salary of every completed year of service being Kshs.10,500.00
  5. 5.Total award of Kshs.178,500.00
  6. 6.The cost of the claim to be borne by the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

majority
Jurisdiction invoked
Jurisdiction of the Industrial Court under the Employment Act, 2007 over employment disputes
Consolidated with
Industrial Cause No. 1772 of 2014

Relief refused

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Compensation at 12 months' salary as pleaded

The court awarded only 6 months' compensation instead of the 12 months' salary sought

p. 4

Interest on the award from the date of filing suit

No interest appears in the final orders; the claimant had prayed for interest on the decretal sum

p. 4

Costs

The cost of the claim shall be borne by the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore find that the claimant was an employee of the respondent.
p. 3Employment relationship notwithstanding subcontracting of labour
The respondent herein having agreed to pay off the claimants through the labour office are thus stopped from relying in this clause. The respondent cannot be seen to be blowing hot and cold at the same time.
p. 3Estoppel against respondent denying employment
in a case of termination of employment, the employer must not only prove that the reason for termination or dismissal is valid and fair but also that the employment was terminated in accordance with fair procedure
p. 3Substantive and procedural fairness under section 45 of the Employment Act
I am therefore inclined to allow the claim and relief as follows
p. 3Disposition - claim allowed
Total of claim…………………………………………………….Kshs.178,500.00
p. 4Final award
The cost of the claim shall be borne by the respondent.
p. 4Costs order

Issues in the judgment

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minor

The judgment is undated in the signature block ('Dated and signed this day of 2018') and the delivery line attributes delivery and signing to Maureen Onyango, Principal Judge, while the judgment itself is authored and signed by D. K. Njagi Marete

minor

The respondent's memorandum of response refers to the claimant not being an employee as at 20th March, 2013 while the claimant's alleged dismissal date is 20th May, 2014 - an unexplained discrepancy in dates

minor

The claimant's pleaded monthly salary figures are internally inconsistent: the claim computes notice pay as Kshs.700 x 30 days = Kshs.21,000, implying a daily rate of Kshs.700, but elsewhere the claim describes employment 'at a salary of Kshs.700 per day but paid on a weekly basis' and uses Kshs.21,000 as monthly salary

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Milionzya Sammy v Twiga Construction Limited [2018] KEELRC 39 (KLR)", Case Analysis (2018). Cause No. 1771 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/39/eng@2018-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.