David Kahura Mburu v Shengli Engineering Construction Company Ltd [2013] KEELRC 734 (KLR)
The bottom line
#Kenya's Industrial Court dismissed a worker's unfair termination claim because he could not prove he was actually terminated at all.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant proved termination of his employment
No case of termination was established; the claimant did not demonstrate a case under section 45 of the Employment Act, 2007.
The court held that the claimant failed to adduce evidence demonstrating unfair termination under section 45. There was no documentary evidence of the terms of employment, the claimant served only nineteen days, and he did not rebut the respondent's allegation of impropriety on 6th August 2010 or the report to Juja Police Station. Having found no termination, the claim could not stand and was dismissed as one that should never have been filed.
Whether the respondent's counter-claim for seven days' payment in lieu of notice was proved
The counter-claim was dismissed for want of evidence.
Although pleaded in paragraph 5(a) of the defence, the counter-claim for seven days' payment in lieu of notice was not supported by any evidence at the hearing. The court held it could not make a finding on an unproven claim and dismissed the counter-claim as well, leaving only the claimant's entitlement to salary for nineteen days worked.
Legal principles established
#- An employer's burden under section 45 of the Employment Act is only engaged where a termination of employment is actually proved; absent proof of termination, no claim for unfair termination arises.
- A party who alleges facts must demonstrate them in evidence; unqualified counter-claims cannot be granted in the absence of evidence.
Court orders
#- 1.The claimant's claim for wrongful and unfair termination and terminal dues is dismissed
- 2.The respondent's counter-claim for seven days payment in lieu of notice is dismissed
- 3.The claimant is at liberty to collect his salary for the nineteen (19) days worked
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction over wrongful and unfair termination claims (Employment Act, 2007; Industrial Court cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kahura Mburu v Shengli Engineering Construction Company Ltd [2013] KEELRC 734 (KLR)", Case Analysis (2013). Cause No. 430 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/734/eng@2013-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.