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ELRCDismissedCause No. 2272 of 2012· [2013] KEELRC 58 (KLR)

Bernard Shisiali Muhatia V Speedex Logistics Ltd [2013] KEELRC 58 (KLR)

Industrial Court of Kenya
11 December 2013
DMD.K. Njagi Marete
2,045 words in judgment
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The bottom line

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The Industrial Court dismissed an unfair termination claim because the employee accepted his final dues and could not disprove the employer's account of misconduct.

What this practically means

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Executive summary

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The claimant, employed as a rider from 1st January 2009, was terminated by letter dated 30th October 2012 effective 1st November 2012, the letter citing 'a recent accident'. He claimed salary for October 2012, prorata leave, service pay and twelve months' compensation for unfair termination, less the Ksh.39,010.00 final dues he had acknowledged receiving. The respondent, in an amended statement of response, denied unfair termination, asserting the claimant had been warned for lateness, signing an LPO for fuel without authority, misuse of fuel, and unexplained absence of an official motorbike, and that he had become erratic and unreliable after the accident. The claimant testified that his claim was limited to compensation for ten months, the balance of three years having been met. The court framed three issues: fairness of termination, entitlement to relief, and costs. Applying the balance of probabilities, it found the respondent's account 'clearer and cleaner', described the claimant as having become a malingerer after the accident, and held the termination fair under section 45 of the Employment Act, 2007. The claim was dismissed as untruthful and an afterthought since final dues had been paid and acknowledged. The respondent's unpleaded claim for payment in lieu of notice was also dismissed. Costs were awarded to the respondent.

Key legal issues

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01

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was fair; the claimant's case was improbable and the respondent's account of misconduct after the accident was more credible on a balance of probabilities

Reasoning

The termination letter cited the accident, but the amended response gave other grounds (lateness, unauthorised LPO signing). No warning letters were exhibited, but the claimant neither denied nor rebutted the respondent's evidence. Applying the balance of probabilities, the court found the respondent's case more probable and the claimant a malingerer, and held the termination fair under section 45 of the Employment Act, 2007.

p. 5
02

Whether the claimant was entitled to the reliefs sought

Holding

The claim was dismissed as untruthful and an afterthought since final dues of Ksh.39,010.00 had been paid and acknowledged

Reasoning

The claimant acknowledged receipt of Ksh.39,010.00 as final dues but claimed he signed out of desperation. The court found the prayers neither truthful nor realistic, as they sought to relitigate matters already covered by the final dues calculation, and characterised the claim as mischievous and an afterthought.

p. 4

Legal principles established

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  • Where evidence is scanty, the court decides the dispute on the balance of probabilities - which party's case is more probable
  • Under section 45 of the Employment Act, 2007, a termination is unfair where the employer fails to prove a valid and fair reason and a fair procedure

Court orders

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  1. 1.Dismissal of the claimant's claim with costs to the respondent
  2. 2.Dismissal of the respondent's claim for payment in lieu of notice as not sustainable, not having been pleaded as a counter-claim

Authorities

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Legislation

  • Employment ActSection 45 (and references to sections 41, 46, 51)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007 (Industrial Court jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Shisiali Muhatia V Speedex Logistics Ltd [2013] KEELRC 58 (KLR)", Case Analysis (2013). Cause No. 2272 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/58/eng@2013-12-11

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