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ELRCDismissedCause No. 970 of 2010· [2013] KEELRC 189 (KLR)

Alosie Sitaka Asuman v China Jiangsu International [2013] KEELRC 189 (KLR)

Industrial Court of Kenya
18 July 2013
DMD.K.N. Marete
683 words in judgment
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The bottom line

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A Kenyan court dismissed an unfair dismissal claim even though the employer never showed up, because the worker could not prove he was employed.

What this practically means

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Executive summary

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The claimant, described as a former labourer employed by the respondent construction contractor in or about August 2006 at a monthly salary of Kshs.7,000, brought an amended memorandum of claim (filed 9th September 2011) alleging wrongful and unfair verbal termination of his services in January 2010 and failure to pay terminal benefits. He sought Kshs.46,200 comprising pay in lieu of notice, severance pay and accrued leave, plus compensation of up to 12 months' wages (Kshs.84,000), costs and interest, invoking section 40(f) and (g) of the Employment Act, 2007. The respondent filed no pleading, did not appear and did not defend the claim despite evidence of service. The claimant testified on 5th July 2013. The court found the evidence wanting: the only documents were a demand letter from Kituo cha Sheria for Kshs.32,000 and an unclear salary card bearing the name 'Aloice' that did not identify the employer or appear authentic. The court held that the claimant's allegations were unsupported by evidence and remained unproven, emphasising that he who alleges must prove even in an undefended suit. It also observed that construction-industry employment is typically casual and contract-bound. The claim was dismissed for want of proof with no order as to costs.

Key legal issues

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01

Burden of proof in an undefended employment claim

Holding

The claim was dismissed because the claimant failed to discharge the burden of proving employment and termination, notwithstanding the respondent's non-appearance

Reasoning

The court noted the respondent never entered appearance or filed a defence despite service. However, the claimant's testimony was unaccompanied by adequate documentary proof: the demand letter did not match the sums claimed and the salary card was unclear, did not name the employer and was not authentic. The claimant did not tender sequential evidence of employment, duties, place of work or the nature of termination, so the allegations remained unproven.

p. 2
02

Nature of employment in the construction industry

Holding

The court observed that employment under construction contractors is typically casual and tied to the pendency of the contract, and the claimant's failure to disclose the nature of his duties left the issue unresolved

Reasoning

The court remarked that the respondent appeared to be a construction contractor where employees are conscripted into piece-rate work dependent on the contract's duration, not permanent employment. Because the claimant did not disclose his nature of work and duties, the court could not resolve the character of the employment, leaving material gaps in the claimant's case.

p. 2

Legal principles established

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  • A party who alleges must prove, even where the claim is undefended

Court orders

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  1. 1.Dismissal of the claim for want of proof
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Act, 2007section 40(f) and (g)
Jurisdiction invoked
Reference to the Industrial Court of Kenya under the Employment Act, 2007 (section 40 invoked in the claim); no specific provision cited in the judgment

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, "Alosie Sitaka Asuman v China Jiangsu International [2013] KEELRC 189 (KLR)", Case Analysis (2013). Cause No. 970 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/189/eng@2013-07-18

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