John Karanja Mbogo v Leah Wangui Mburu t/a Gilgil Distributors Limited [2020] KEELRC 612 (KLR)
The bottom line
#A Kenyan court confirmed a driver was an employee and won holiday and leave pay, but lost his termination claim because he absconded duty.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was the employee of the respondent
- 2.Whether the remedies sought are due
- 3.Who should pay costs
Key legal issues
#Whether the claimant was an employee of the respondent or an independent contractor paid on commission
The court found the claimant was an employee, based on control, monthly pay, payment of statutory dues, enjoyment of annual leave and subjection to disciplinary requirements
The claimant testified he remained under the respondent's control from 2003 to 2014, was paid monthly, enjoyed annual leave and his statutory dues were paid. The respondent confirmed statutory deductions and disciplinary processes applied. The respondent, which had records in its possession to disprove employment, failed to produce them, so the burden was not discharged. The distinguishing features of a contract for service were absent.
Whether the termination of employment was unfair
The claimant absconded duty; summary dismissal was justified, so no notice pay or compensation for unlawful termination was awarded
The claimant's last day was 28th February 2014 when he was asked to hand over vehicle keys. Warning letters dated 20th February, 7th March and 19th March 2014 for absence from duty were on record and not denounced in his pleadings. He did not report back. Absence from duty is gross misconduct under section 44 of the Act justifying summary dismissal.
Whether the claims for public holidays and annual leave were due
Public holiday pay of Ksh.217,729 and leave pay of Ksh.38,989 awarded since the respondent failed to produce work records
Under the applicable Wage Orders, work on public holidays attracts double payment, and the court assessed 10 days per year (9 days for February 2006 to January 2007). No records showed the claimant was allowed annual leave under section 28 of the Act for the last two/three years, so leave pay was computed on the last wage. The respondent failed to discharge its burden of producing work records.
Legal principles established
#- The burden to justify termination of employment lies on the employer under section 43 of the Employment Act, while the employee bears the burden to prove unfair termination under section 47(5); once the employee adduces prima facie evidence, the burden shifts to the employer
- The employer bears the duty to file work records; where work records are not produced, the employee's claims as to terms and conditions of employment are taken as true
- Where there is no written contract, the existence of an employment relationship is discerned from distinguishing factors such as control, payment of wages/salary, statutory deductions, leave and subjection to disciplinary procedures
- Absence from duty constitutes gross misconduct under section 44 of the Employment Act justifying summary dismissal
Court orders
#- 1.Payment of Kshs. 217,729 for work during public holidays
- 2.Payment of Kshs. 38,989 as leave pay
- 3.Certificate of service to be issued pursuant to section 51 of the Employment Act, 2007
- 4.Costs awarded to the claimant at 50%
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act, 2007); the court declined jurisdiction over the work injury claim under the Work Injury Benefits Act, 2007
Relief refused
#Compensation for unlawful termination and notice pay
The claimant absconded duty; absence from duty is gross misconduct justifying summary dismissal
Gratuity
No written contract providing for gratuity; statutory dues including PAYE and NSSF were paid so no service pay is due
Unlawful monthly deductions of Ksh.250 for 12 years
Deduction was authorised for trade union contributions and no complaint of non-remittance was made
Compensation for work injury (Ksh.82,000) under the Workman's Compensation
Claim time barred under section 90 of the Act and the court lacks original jurisdiction over work injury claims under the Work Injury Benefits Act, 2007
Unremitted NSSF dues of Ksh.2,800
Such dues are lawfully payable to the statutory body, not to the employee, which has sanctions for non-remittance
Costs
Costs awarded to the claimant at 50%
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 court find the claimant was an employee of the respondent.
Once the employee presents prima facie evidence to that effect, the burden shifts to the employer to rebut that evidence by demonstrating that he/she had a valid reason to terminate the employment
Where work records are not produced, any claim made by an employee with regard to terms and conditions of employment must be taken as the truth.
Work injury claims lie to the Director under the Work Injury Benefits Act, 2007. The court is only appellate.
a) Pay for work during public holidays Kshs. 217,729; b) Leave pay Kshs.38,989; c) Certificate of service shall be issued pursuant to section 51 of the Act; d) Costs awarded to the claimant at 50%.
Issues in the judgment
#The claimant's testimony dates his work injury to 13th August 2006, while the court's determination and the defence state the injury occurred in 2011
The claimant testified he was paid Ksh.8,500 per month while the opening narration of his case states Ksh.8,541
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Karanja Mbogo v Leah Wangui Mburu t/a Gilgil Distributors Limited [2020] KEELRC 612 (KLR)", Case Analysis (2020). Cause No. 89 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/612/eng@2020-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.