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ELRCDismissedNot stated in judgment· [2013] KEELRC 680 (KLR)

Patrick Nguthiru Gichuki v David Denny [2013] KEELRC 680 (KLR)

Industrial Court of Kenya
10 April 2013
ANAbuodha J. N.
1,109 words in judgment
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The bottom line

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Even when an employer doesn't show up to defend a claim, a Kenyan worker must still prove their case to win.

What this practically means

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Executive summary

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In this undefended employment claim filed on 13th July, 2011, the claimant alleged that the respondent retained him from November 2005 to January 2008 as a maintenance worker (water systems, electrical services, painting, joinery and general maintenance) at Kshs.500 per day, later reduced to Kshs.350 between February 2007 and January 2008, and that his services were then terminated unjustifiably. He sought terminal dues: leave days, unremitted NSSF dues, four months' unpaid salary, tools allowance, one month's pay in lieu of notice and maximum compensation for unlawful dismissal. The matter proceeded ex parte on 20th February, 2013, the respondent having filed no response and attended no hearing. The court framed three questions: whether the claimant was employed by the respondent or by Electrical Services (which had constructed the respondent's house); whether he was a casual/daily wage or month-to-month employee; and whether his termination was unfair under the Employment Act. The court found the employment relationship unclear: no letter of appointment or certificate of service was produced, and the claimant's move from Kshs.24,000 monthly pay at Electrical Services to roughly Kshs.10,500 per month went unexplained. The payment vouchers produced were internally suspect - two petty cash vouchers both dated 22nd October, 2007 purporting to pay November and December 2007 salary in advance. Holding that an undefended cause does not lower the claimant's burden of proof, the court found the evidence below the required threshold and dismissed the claim with costs on 10th April, 2013 (Abuodha J. N.).

Key legal issues

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01

Identity of the employer - respondent or Electrical Services

Holding

The court could not determine on whose behalf the claimant worked; no letter of appointment or certificate of service from Electrical Services was produced, and the claimant's move from a monthly wage of Kshs.24,000 to about Kshs.10,500 per month remained unexplained

Reasoning

The claimant's own testimony showed he was seconded from Electrical Services, which the respondent had contracted to build a house. He produced no letter of appointment or certificate of service from Electrical Services. The unexplained drop in his monthly pay from Kshs.24,000 to roughly Kshs.10,500 cast doubt on the employment relationship alleged. The ex parte posture left the court unable to resolve this aspect.

p. 1
02

Whether the claimant was a casual/daily wage employee or a month-to-month employee

Holding

The claimant failed to prove his alleged daily wage of Kshs.500; the two petty cash vouchers dated 22nd October, 2007 purportedly paying November and December 2007 salary in advance were curious and unsupported

Reasoning

Salaries are ordinarily paid in arrears, yet the two petty cash vouchers were both dated 22nd October, 2007 and purported to cover November and December 2007. Nothing was exhibited to vouch for the alleged daily rate of Kshs.500, and one voucher (PNG-2(c)) was missing. The documentary evidence was therefore internally suspect and insufficient.

p. 2
03

Burden of proof in an undefended claim

Holding

Even in an ex parte/undefended cause, the claimant bears the burden of proving his case on a balance of probabilities, and the burden was not discharged

Reasoning

The court applied the settled civil standard: a claimant must produce sufficient evidence to persuade the court that the alleged events more probably took place than not. Proceeding undefended does not lower that burden. The evidence before the court was weak or insufficient, so even if the claim might well be merited, the court could not grant the reliefs sought.

p. 2

Legal principles established

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  • A party seeking a determination in its favour must provide sufficient evidence to persuade the court that what is claimed more probably took place than not - the civil standard on a balance of probabilities
  • An undefended/ex parte cause does not lower the burden of proof on the claimant

Court orders

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  1. 1.The claimant's claim is dismissed with costs

Authorities

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Legislation

  • Employment ActNot specified (referenced in relation to fairness/unlawfulness of termination)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act (proceeding by memorandum of claim filed 13th July, 2011)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Patrick Nguthiru Gichuki v David Denny [2013] KEELRC 680 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/680/eng@2013-04-10

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