[2014] KEELRC 1409 (KLR)
The court found that the claimant had established, through documentary evidence and the absence of contrary evidence from the respondent, that he worked for the respondent beyond his attachment period and was entitled to be treated as an employee. The respondent's failure to provide a written contract or evidence of...
Source-derived case information.
- Citation
- [2014] KEELRC 1409 (KLR)
- Parties
- Claimant: Samwel Miyogo Otiso; Respondent: Sauti Ya Rehema (Sayare) Radio & Television Network
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 47 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the claimant.
- Judges
- HS Wasilwa
- Legal Topics
- Employment Relationship, Written Contracts, Burden of Proof, Salary Arrears
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Miyogo Otiso
Claimant
Sauti Ya Rehema (Sayare) Radio & Television Network
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was an employee or a volunteer of the respondent.
- 2 Whether the claimant is entitled to salary arrears and terminal benefits for the period worked.
- 3 Whether the respondent breached statutory obligations under the Employment Act regarding written contracts.
Ratio Decidendi
The court found that the claimant had established, through documentary evidence and the absence of contrary evidence from the respondent, that he worked for the respondent beyond his attachment period and was entitled to be treated as an employee. The respondent's failure to provide a written contract or evidence of a volunteer arrangement shifted the burden of proof to them, which they failed to discharge. The court held that the claimant was entitled to salary arrears for the period worked and prorated terminal benefits, as the respondent breached statutory obligations under the Employment Act by not formalizing the employment relationship in writing.
Court Disposition
Judgment for the claimant.
Orders
- The respondent shall pay the claimant Kshs 80,000 as salary arrears for August 2012 to March 2013.
- The respondent shall pay the claimant Kshs 8,000 as prorated terminal benefits for the period worked.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT KISUMU
CAUSE NO. 47 OF 2014
(Before Hon. Justice Hellen S. Wasilwa on 18th November, 2014)
SAMWEL MIYOGO OTISO...........................................................................................CLAIMANT
-VERSUS-
SAUTI YA REHEMA (SAYARE) RADIO & TELEVISION NETWORK.........RESPONDENTS
JUDGMENT
The claimant herein Samwel Miyogo Otiso filed his plaint On 7. 3.2014 through the firm of Moracha & Co. Advocates. The claim was served on the respondents who filed their defence on 4. 4.2014 through the firm of E. C. Rotich & Co. Advocates. The matter was then fixed for hearing on 21. 10. 2014. The respondents were served on 17. 9.2014 as envisaged from the affidavit of service filed in court on 21. 10. 2014. On this day the respondents nor their counsel appeared. The court directed that hearing proceeds ex parte.
The claimant's case is that he was employed by the respondents as a journalist at respondents Kisii office. Claimant was employed in August 2012. Before then, the claimant was on attachment from February 2009 to May 2009 at the respondents Kisii office. He was later employed by respondents at a salary of Kshs 10,000/= per month. He was however not paid promptly. The claimant exhibited his attachment letter, identity card, press identification card and daily attendance register as proof that he worked for respondents. His duties were to record news, running the continuity programme, adverts and reporting news. He also did the receptionists work when the receptionist was away. The claimant claim is for payment of his salary to-date as from August 2012. He also seeks for damages.
In the defence filed by the respondents, they had stated that the claimant was not their employee at all but was a volunteer. There is no evidence that he was a volunteer but there is evidence that he was in respondents premises way past his attachment period in December 2012. If that was his position, then the respondents owed him a duty to give him a letter as a volunteer.
I find that from the evidence produced by the claimant, he worked or served the respondents in some capacity. It is the respondents who failed to give him an appointment letter. Under S. 9(2) of the Employment Act:-
“(2) An employer who is a party to a written contract of service shall be responsible for causing the contract to be drawn up stating particulars ofemployment and that the contract is consented to by the employee in accordance with subsection (3)”.
It was the respondents who failed to give the letter indicating in what position the claimant served. Under S. 10(1) of Employment Act 2007:-
“(1) A written contract of service specified in section 9 shall state particulars of employment which may, subject to subsection (3), be given in instalments and shall be given not later than two months after the beginning of the employment”.
The burden therefore of proving or disproving an alleged terms of employment contract falls on respondents.
It is therefore this court's finding that the claimant has established his case. I do find for the claimant and award him as follows:-
Salary from August 2012 to March, 2013
= 8 X 10,000 = Kshs 80,000/=
Prorated salary as terminal benefits for the period worked of 8 months = Kshs 8,000/=
__________________
TOTAL = KSHS 88,000. 00/=
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The respondents shall meet costs of this suit.
HELLEN S. WASILWA
JUDGE
18/11/2014
Appearances:-
Claimant present
N/A for Respondents
CC. Wamache