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ELRCDismissedCause 745 of 2011· [2012] KEELRC 227 (KLR)

HELLEN AWINJA SAKALA V EAST AFRICAN GROWERS [2012] KEELRC 227 (KLR)

Industrial Court of Kenya
26 October 2012
ABAbuodha
1,010 words in judgment
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The bottom line

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A Kenyan court dismissed a worker's unfair termination claim because she couldn't prove continuous employment, showing evidence and records decide these cases.

What this practically means

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Executive summary

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The claimant, Hellen Awinja Sakala, brought a memorandum of claim on 17th May 2011 before the Industrial Court of Kenya alleging that her services with East African Growers were wrongfully terminated in May 2010 after six years of continuous employment at a daily salary of Kshs. 300. She sought terminal dues of Kshs. 203,400, comprising one month's salary in lieu of notice, compensation for untaken leave, service/gratuity at 18 days' salary per completed year, and twelve months' gross pay as compensatory damages for wrongful and unfair termination. The respondent denied that the claimant was its regular employee, contending that she was at most a casual employee on daily wages recruited as work became available. In evidence, the claimant produced an ATM card issued through Diamond Trust Bank in conjunction with the respondent, but admitted her wages were paid after every two days. The respondent's Human Resource Assistant found the claimant's name only on the Muster Roll for casual employees, which also showed days of absence. The court, prepared by Abuodha J on the proceedings recorded by his predecessor, Justice Kosgey, held that the claimant bore the burden of proving continuous employment and wrongful termination, and that her contradictory evidence and failure to call corroborating witnesses left the court with scanty and shaky evidence. The court found she was a casual worker whose daily-wage contract was terminable at the close of any day without notice under section 35(1)(a) of the Employment Act. The claim was dismissed with no order as to costs.

Key legal issues

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01

Status of the claimant - continuous employee or casual worker

Holding

The claimant was a casual worker on a daily wage of Kshs. 300/- payable after two days, as corroborated by both parties' testimony and the Muster Roll extract

Reasoning

The claimant's own testimony that she earned a daily wage paid after every two days contradicted her assertion of continuous employment. She called no additional evidence - no colleague, acquaintance or labour officer - to support her claim of six years' continuous service. The respondent's Human Resource Assistant traced her name only on the Muster Roll for casual employees, showing daily recruitment dependent on availability of work.

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02

Whether the termination was wrongful

Holding

No finding of wrongful termination was possible; a daily-wage contract is terminable by either party at the close of any day without notice under section 35(1) of the Employment Act

Reasoning

Having found the claimant was a casual daily-wage employee, the court held her employment fell within section 35(1)(a) of the Employment Act, under which a contract to pay wages daily is deemed terminable at the close of any day without notice. Her dismissal without notice was therefore lawful and no compensation for wrongful or unfair termination could arise.

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03

Burden and sufficiency of evidence

Holding

The claimant failed to discharge the burden of proving continuous employment and wrongful termination

Reasoning

The court reiterated the evidentiary rule that a party seeking a finding in its favour must produce evidence reasonably assisting the court to reach that finding. The claimant's contradictory testimony - continuous employment asserted but daily wages admitted - and her failure to call corroborating witnesses or a labour officer left the court with scanty and shaky evidence insufficient to justify the relief prayed for.

p. 2

Legal principles established

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  • A party alleging wrongful termination bears the burden of leading facts and producing evidence that can reasonably assist the court in reaching a finding in its favour
  • Under section 35(1) of the Employment Act, a contract to pay wages daily is deemed terminable by either party at the close of any day without notice

Court orders

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  1. 1.The claim is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 35(1)(a)
Jurisdiction invoked
Industrial Court of Kenya (Cause under the Employment Act)

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, "HELLEN AWINJA SAKALA V EAST AFRICAN GROWERS [2012] KEELRC 227 (KLR)", Case Analysis (2012). Cause 745 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/227/eng@2012-10-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.