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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 89 of 2017

John Karanja Mbogo v Leah Wangui Mburu t/a Gilgil Distributors Limited [2020] KEELRC 612 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
28 July 2020
3,892 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant sued the respondent seeking compensation for unlawful termination, notice pay, public holiday pay, annual leave, gratuity, alleged unlawful monthly deductions, work injury compensation, unremitted NSSF dues, a certificate of service and costs, arising from employment as a driver/salesman from 2003 to February 2014. The respondent denied an employment relationship, contending the claimant worked on commission, deserted duty after warnings and failed to attend a disciplinary hearing. The court framed three issues: whether the claimant was an employee, whether the remedies sought were due, and costs. Applying the distinguishing features of employment versus contract for service, the court found an employment relationship existed, noting the claimant was under the respondent's control, paid monthly, enjoyed leave, had statutory dues paid and was subject to discipline. Because the respondent kept but did not produce work records, the court took the claimant's unchallenged claims on terms and conditions as true. On termination, the court found the claimant absconded duty after being asked to hand over his vehicle, and notices for absence went unheeded; absence being gross misconduct under section 44 of the Employment Act, summary dismissal was justified, defeating claims for notice pay and compensation. The court awarded Ksh.217,729 for public holiday work and Ksh.38,989 leave pay, ordered a certificate of service under section 51, and awarded the claimant 50% of costs. Claims for gratuity, the Ksh.250 deductions, work injury compensation (time barred and outside the court's original jurisdiction under the Work Injury Benefits Act) and unremitted NSSF dues were refused.

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 the employee of the respondent
  2. 2.Whether the remedies sought are due
  3. 3.Who should pay costs

Key legal issues

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01

Whether the claimant was an employee of the respondent or an independent contractor paid on commission

Holding

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

Reasoning

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.

p. 4
02

Whether the termination of employment was unfair

Holding

The claimant absconded duty; summary dismissal was justified, so no notice pay or compensation for unlawful termination was awarded

Reasoning

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.

p. 5
03

Whether the claims for public holidays and annual leave were due

Holding

Public holiday pay of Ksh.217,729 and leave pay of Ksh.38,989 awarded since the respondent failed to produce work records

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Payment of Kshs. 217,729 for work during public holidays
  2. 2.Payment of Kshs. 38,989 as leave pay
  3. 3.Certificate of service to be issued pursuant to section 51 of the Employment Act, 2007
  4. 4.Costs awarded to the claimant at 50%

The bench

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

majority

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

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Compensation for unlawful termination and notice pay

The claimant absconded duty; absence from duty is gross misconduct justifying summary dismissal

p. 5

Gratuity

No written contract providing for gratuity; statutory dues including PAYE and NSSF were paid so no service pay is due

p. 5

Unlawful monthly deductions of Ksh.250 for 12 years

Deduction was authorised for trade union contributions and no complaint of non-remittance was made

p. 5

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

p. 6

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

p. 6

Costs

Costs awarded to the claimant at 50%

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.

The court find the claimant was an employee of the respondent.
p. 4Employment relationship
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
p. 4Burden of proof in unfair termination
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.
p. 5Employer's duty to produce work records
Work injury claims lie to the Director under the Work Injury Benefits Act, 2007. The court is only appellate.
p. 6Jurisdiction over work injury claims
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%.
p. 6Final orders

Issues in the judgment

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material

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

minor

The claimant testified he was paid Ksh.8,500 per month while the opening narration of his case states Ksh.8,541

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, "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.