Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 430 of 2012· [2013] KEELRC 734 (KLR)

David Kahura Mburu v Shengli Engineering Construction Company Ltd [2013] KEELRC 734 (KLR)

Industrial Court of Kenya
4 June 2013
1,306 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The claimant, employed by the respondent as a tyreman on 19th July 2010, claimed he was wrongfully and unfairly terminated on 6th August 2010 without notice or terminal dues, seeking Ksh.65,330.00, twelve months' compensation of Ksh.312,000.00, costs and interest. The respondent denied unfair termination, asserting the claimant absconded after being found sealing tyres with fake puncture sealing pads, an incident reported at Juja Police Station; it admitted liability only for nineteen days' salary and counter-claimed seven days' payment in lieu of notice. The court framed four issues: whether there was a termination, whether it was wrongful and unlawful, entitlement to relief, and costs. Applying section 45 of the Employment Act, 2007, the court found the claimant had not demonstrated any termination of employment, let alone an unfair one; there was no documentary evidence of the terms of employment, and the claimant did not rebut the allegation of impropriety or the police report. The claim was dismissed as one that should never have been filed. The respondent's counter-claim for seven days' notice pay was likewise dismissed for want of evidence, being 'left naked and hanging'. The court left the claimant free to collect his salary for the nineteen days worked, which the respondent was willing to pay, and ordered each party to bear their own costs. The claim and counter-claim were both dismissed.

Key legal issues

#
01

Whether the claimant proved termination of his employment

Holding

No case of termination was established; the claimant did not demonstrate a case under section 45 of the Employment Act, 2007.

Reasoning

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.

p. 2
02

Whether the respondent's counter-claim for seven days' payment in lieu of notice was proved

Holding

The counter-claim was dismissed for want of evidence.

Reasoning

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.

p. 3

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. 1.The claimant's claim for wrongful and unfair termination and terminal dues is dismissed
  2. 2.The respondent's counter-claim for seven days payment in lieu of notice is dismissed
  3. 3.The claimant is at liberty to collect his salary for the nineteen (19) days worked
  4. 4.Each party to bear their own costs

Authorities

#

Legislation

  • Employment Actsection 45
  • Employment Actsection 46
  • Employment Actsection 51
  • Employment Actsection 41
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.