ESHA CHIZI LUGOGO V PACT KENYA [2013] KEELRC 501 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination was justifiable under Sections 41 and 44 of the Employment Act
The termination was justifiable; the Claimant was given an opportunity to make representations on the allegations, satisfying Section 41, and the claim for unfair termination was dismissed
Section 44(3) permits summary dismissal for fundamental breach, including failure to follow lawful instructions. Section 41 requires the employer to explain the reasons and hear the employee's representations. Meetings were held between the Claimant and the Respondent's representatives before termination, and the Respondent's evidence that she was heard was accepted. The Claimant's contradictory and evasive sworn evidence was rejected as unreliable, leaving the Respondent's account uncontroverted.
Whether the Industrial Court has jurisdiction over a defamation claim arising from an employment relationship
The Court held it has jurisdiction over defamation arising in the course of employment, but the claim failed on the facts
The Respondent argued the Court lacked jurisdiction to entertain a tort claim. The Court rejected this, holding that a defamation claim can lie alongside employment claims. However, on the facts, the ingredients of defamation were not established, so the claim was dismissed on merits rather than for want of jurisdiction.
Whether the Claimant proved her claim for Zanzibar trip expenses
The claim was dismissed for failure to prove damages with cogent evidence
The Claimant presented jumbled documents, some dating from 2008 despite the trip having taken place in February 2009. Applying Bonham Carter v Hyde Park Hotel, the Court held that a party claiming damages bears the burden of proving them; particulars alone are insufficient. The receipts submitted did not support the claimed expenses.
Whether the Respondent proved its counterclaim for the balance of personal telephone calls
The counterclaim for Kshs. 28,541 was dismissed but the admitted Kshs. 8,567.70 was recoverable from the Claimant's final dues
The Respondent presented no criteria for separating personal from official calls, so the disputed balance was unproved. The admitted portion of Kshs. 8,567.70 was ordered to be offset against the Claimant's final dues.
Legal principles established
#- Evidence that is inconsistent and contradictory must be rejected
- A claim in defamation may lie alongside other claims arising out of the employment relationship
- An employee who refuses to engage the employer's internal grievance mechanisms cannot claim in court that they were not heard
Court orders
#- 1.The Claimant's claim for unfair termination is dismissed
- 2.The claims for welfare contributions, severance pay, prorata leave, six days' salary for April 2009, defamation and Zanzibar trip expenses are dismissed
- 3.The Respondent's counterclaim for Kshs. 28,541 balance on personal calls is dismissed
- 4.The admitted sum of Kshs. 8,567.70 is recoverable from the Claimant's final dues, which are to be computed in accordance with the award and released to the Claimant forthwith
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Industrial Court jurisdiction over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ESHA CHIZI LUGOGO V PACT KENYA [2013] KEELRC 501 (KLR)", Case Analysis (2013). Cause 421 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/501/eng@2013-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.