Phillip Riunga Matema v Broad Network Transporters Limited [2021] KEELRC 670 (KLR)
The bottom line
#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 an employee of the respondent under an oral contract of employment
- 2.Whether there was unfair termination of employment
- 3.Whether the claimant is entitled to underpayment, unpaid wages, notice pay, house allowance, leave days and service pay
- 4.Whether a certificate of service is due
Key legal issues
#Existence of employment relationship
The court found an oral contract of employment existed between the claimant and the respondent
Sections 8, 9 and 10 of the Employment Act, 2007 permit oral contracts of employment. Once the claimant filed suit, section 10 placed on the employer the duty to produce work records to prove or disprove employment. The respondent, though served and submitted to jurisdiction, called no evidence and remained absent at the hearing. In the absence of the respondent meeting its statutory duty, the court accepted the claimant's testimony on the oral contract and its terms, and found employment established.
Unfair termination and notice pay
Termination without notice was unlawful and compensable, but the award was limited to notice pay given the short 3-month tenure
Termination of employment without notice or payment in lieu is unlawful under sections 35, 41 and 45 of the Employment Act, and such malpractice is compensated under section 49. However, considering that the claimant worked for only 3 months, the court held that notice pay of Ksh.25,000 sufficed to address the unfairness, declining any additional compensation for the unfair termination.
Claims for house allowance, leave and service pay
House allowance, leave pay and service pay claims failed for lack of contractual basis and insufficient length of service
In the absence of a written contract, the court treated the claimant's terms as casual, with the Ksh.25,000 monthly wage already generous, making any further house allowance claim unjust enrichment. The leave claim was not substantiated as to what period accrued the 2 days. Service pay accrues only after a full year of service, which the 3-month tenure did not satisfy.
Legal principles established
#- Under section 10 of the Employment Act, once an employee files suit, the duty to produce work records to prove or disprove employment rests on the employer
- Where the employer fails to meet its statutory duty to produce employment records, the court must believe the employee as to the terms and conditions of employment
- Underpayment of wages is an unfair labour practice and refusal to pay wages for work done is unlawful
Court orders
#- 1.Notice pay at Ksh.25,000
- 2.Underpayment Ksh.5,000
- 3.Unpaid wages Ksh.50,000
- 4.A certificate of service shall issue
- 5.Dues at (a), (b) and (c) shall be paid subject to section 49(2) of the Employment Act, 2007
- 6.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Cause No. 1210 of 2016); Employment Act, 2007
Relief refused
#House allowance of Ksh.11,250
Without a written contract the claimant's terms were treated as casual and the Ksh.25,000 monthly wage was already generous; a further claim would be unjust enrichment
Leave days pay of Ksh.1,666
The claim for 2 days of leave was not addressed as to what period of employment accrued such 2 days
Service pay
Service pay is only due upon service for a full year, and the claimant worked only 3 months
Compensation beyond notice pay for unfair termination
The claimant worked only 3 months and notice pay was held sufficient to address the unfairness
Costs
Each party shall bear own costs
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.
Under section 10 of the Act, upon an employee filing suit with the court, the duty to produce work records to prove or disapprove employment is placed upon the employer.
The court must believe the claimant with regard to the terms and conditions of his employment.
Underpayment of wages is an unfair labour practice. Refusal to pay wages for work done is unlawful.
Certificate of service is due whatever the reasons leading to termination of employment.
Accordingly, the claim herein is found with merit and judgement herein entered for the claimant against the respondent in the following terms;
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Phillip Riunga Matema v Broad Network Transporters Limited [2021] KEELRC 670 (KLR)", Case Analysis (2021). Cause No. 1210 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/670/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.