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ELRCDismissedCause No. 1157 of 2012· [2013] KEELRC 758 (KLR)

Isaac Lumumba Omega v Babu & Sons C.S. Bharij [2013] KEELRC 758 (KLR)

Industrial Court of Kenya
31 July 2013
DMD.K.N. Marete
1,588 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, Isaac Lumumba Omega, sued for wrongful and unfair termination of employment and unpaid terminal benefits of Kshs.56,998.00, plus compensation of up to 12 months' wages (Kshs.111,996.00), costs and interest. He claimed he was employed on 25th June 2012 at Kshs.18,000.00 monthly (Kshs.600.00 daily) under an oral contract without a written appointment letter, and terminated on 4th July 2012 without notice, reasons or terminal dues. The respondent, identified at hearing as Charanpal Singh Bharij, proprietor of Hot Wheels garage in Karen, denied the claim, disputed being sued under the correct name, alleged forgery of a demand letter, and asserted the claimant was terminated six days into probation for incompetence, reasons having been communicated. The claimant did not testify and relied on his claim; DW1 Charanpal Singh Bharij testified for the respondent and produced evidence of seven other similar suits by the claimant in the same court. The court framed five issues: identity of the respondent, lawfulness of termination, whether the claimant was a frivolous and vexatious litigant, entitlement to relief, and costs. It held that the claimant failed to identify the proper respondent; that probationary termination for incompetence was justified and lawful; and that the claim was frivolous, vexatious and an abuse of court process. The claim was dismissed with costs to Charanpal Singh Bharij, dated, delivered and signed on 31st July 2013.

Key legal issues

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01

Identification of the proper respondent

Holding

The claimant failed to identify the correct respondent; Mr. Charanpal Singh Bharij, proprietor of Hot Wheels garage, was not an appropriate respondent as sued

Reasoning

DW1 testified he did not know the respondent as sued, 'Mr. Babu & Sons C.S. Bharij'. He was the proprietor of Hot Wheels garage in Karen. The court held that from the onset the claimant was unable to clearly identify the respondent, posing a problem of identification and location, and upheld the objection to him as a respondent.

p. 3
02

Whether termination was wrongful and unlawful

Holding

Termination during the six-day probationary period for incompetence and inability to perform was justified and lawful

Reasoning

The claimant did not testify and laid no real case for wrongful termination beyond absence of notice and reasons. The respondent testified the claimant was hired at Kshs.600 per day, failed assigned duties, and was terminated within the probation period after reasons were communicated. The court preferred the respondent's account and found the claimant could not sustain his work.

p. 3
03

Whether the claimant is a frivolous and vexatious litigant

Holding

The court found the claim to be frivolous, vexatious and an abuse of the process of court, citing the claimant's seven other similar suits against various respondents

Reasoning

The respondent produced evidence that the claimant had instituted seven other similar suits in the same court against various respondents involving the same subject. The claimant called no evidence of performance or abuse. The court characterized him as a profiteer litigant filing matters on the lottery of finding a sleepy judge.

p. 4

Legal principles established

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  • A claimant must properly identify and sue the correct respondent; failure to do so justifies upholding an objection to the suit
  • Termination during probationary employment for incompetence, where reasons are communicated, is justified and lawful
  • Filing multiple similar suits on baseless claims amounts to frivolity, vexation and abuse of the process of court

Court orders

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  1. 1.Dismissal of the claimant's claim
  2. 2.Costs of the cause awarded to Charanpal Singh Bharij

Authorities

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Legislation

  • Employment Act, 2007section 42(1)
Jurisdiction invoked
Dispute referred under the Industrial Court's jurisdiction over employment and labour relations (memorandum of claim under the Industrial Court procedure); Employment Act, 2007 invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Isaac Lumumba Omega v Babu & Sons C.S. Bharij [2013] KEELRC 758 (KLR)", Case Analysis (2013). Cause No. 1157 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/758/eng@2013-07-31

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