Kuliba v Sandu & another (Cause 15 of 2018) [2022] KEELRC 4127 (KLR)
The bottom line
#Kenya's Employment Court awarded a caretaker Kshs 228,489.50 because his employers had no written contract, no records, and no lawful reason for dismissal.
What this practically means
#Executive summary
#Key legal issues
#Who were the claimant's employers?
Both respondents were jointly and severally liable as employers, since RW1 paid the salary and the property belonged to both.
Section 2 of the Employment Act defines an employer broadly to include agents and managers. Although RW1 alleged the 1st respondent employed the claimant, she admitted paying his salary and testified the property belonged to both respondents. The court therefore held both were legal employers, jointly and severally liable for any award.
Was the claimant a caretaker or a gardener?
The claimant was a caretaker, not a mere gardener.
The respondents failed to reduce the contract to writing under section 9 and failed to keep employment records under sections 10 and 74. The security contract did not displace the inference that a resident employee who cleaned the building, kept watch and dealt with prospective tenants was a caretaker. The claimant's evidence was thus not dislodged.
Was the termination unfair?
Yes - the respondents unlawfully, unprocedurally and unfairly terminated the claimant on or about December 20, 2017.
The court found the claimant's account credible: no notice, no reason, no hearing, and no terminal dues at termination. The respondents' claim that the claimant absconded made no logical sense since he reported the matter to the labour office shortly after and was found to have been treated with indignity. Sections 35, 36, 40/41, 43 and 45 were breached.
What reliefs flow from the unfair termination?
Notice pay, December 2017 salary and underpayment computed on statutory minimum wages; maximum 12 months' compensation; leave settlement upheld; public holiday and gratuity claims denied.
The court used the minimum wage notices availed by the respondents (LN 197/2013, 117/2015, 112/2017) to compute underpayment of Kshs 47,517.60. Considering section 49(4) factors including indignity and over four years of service, maximum compensation of 12 months' gross pay was awarded. The Kshs 25,000 leave settlement was upheld and taken into account.
Legal principles established
#- Where an employer fails to keep employment records as required by sections 10 and 74 of the Employment Act, the court will act on the unchallenged evidence of the employee.
- Failure to reduce a contract of service to writing under section 9 of the Employment Act weakens the employer's ability to displace the employee's account of the terms.
- A payment made in purported full and final settlement of terminal dues that is fraudulent or illegal cannot bar an employee from pressing legitimate claims.
- Gratuity is not payable as of right but only at the instance of the employer or where contractually provided.
Court orders
#- 1.A declaration that the termination of the claimant by the respondents was unfair and unlawful
- 2.One month's salary in lieu of notice of Kshs 12,926.55
- 3.Salary for December 2017 of Kshs 12,926.55
- 4.Salary underpayments of Kshs 47,517.60
- 5.Compensation for unfair and unlawful termination of Kshs 155,118.60 (total Kshs 228,489.50)
- 6.The respondents to issue and deliver a certificate of service to the claimant within 30 days of the judgment
- 7.Costs of the cause to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njaaga v Waweru (Cause 2372 of 2017) [2023] KEELRC 273 (KLR)[2023] KEELRC 273 (KLR)3 Feb 2023
Cite this brief
#Cite this brief
Caselaw, "Kuliba v Sandu & another (Cause 15 of 2018) [2022] KEELRC 4127 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4127/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.