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ELRCDismissedCause No. 1089 of 2011· [2014] KEELRC 67 (KLR)

George Kingori Gathogo v Kenpipe Co-operative Savings & Credit Society [2014] KEELRC 67 (KLR)

Industrial Court of Kenya
5 December 2014
2,956 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee claiming unfair dismissal lost because he couldn't prove his case, recovering only Kshs. 205,471.98 in admitted dues.

What this practically means

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Executive summary

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This was an employment dispute originally filed in the High Court by plaint dated 7th January 2008, transferred to the Industrial Court of Kenya with the parties' agreement in line with the Constitution of Kenya, 2010 dispensation on employment and labour relations disputes. The claimant, employed by the respondent Sacco in 1993 as an Accounts Officer and later upgraded to Manager, claimed damages for unlawful and wrongful termination of his employment on 17th September 2007, quantifying his dues at Kshs. 8,388,497.00 plus general, punitive and exemplary damages. The respondent denied the claim, admitting only Kshs. 205,471.98 after off-setting the claimant's outstanding loan liabilities of Kshs. 1,937,192.80, and maintained the termination followed a lawful restructuring exercise. An earlier judgment in the claimant's favour was set aside by consent on 26th May 2010, with the matter set for a de novo hearing. Marete J identified three issues: whether the termination was wrongful, unfair and unlawful; whether the claimant was entitled to relief; and costs. The court found that the suspension and termination stemmed from the claimant's poor performance, as raised by auditors, which the claimant did not rebut beyond mere denial, and that his failure to apply for positions in the restructured establishment was unexplained. The termination was held lawful. The claim was dismissed save for the admitted dues of Kshs. 205,471.98, payable within thirty days, with costs of the cause awarded to the respondent.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was lawful and not wrongful, unfair or unlawful

Reasoning

The court found that the suspension and termination arose from flaws in the claimant's performance of his duties, as raised by the respondent's auditors, which the claimant did not rebut with evidence beyond mere denial. The claimant was informed of the restructuring and advised to apply for suitable positions but did not apply, and his reasons for not doing so were unconvincing. On the balance of probabilities the matter tilted in favour of the respondent.

p. 6
02

Whether the claimant is entitled to the relief sought

Holding

The claim failed on the critical limb of wrongful termination, so the claimant was entitled only to the respondent's admitted dues of Kshs. 205,471.98

Reasoning

Having failed on the foremost and critical aspect of the fallibility of the termination, the claimant could not succeed on relief. The respondent admitted just dues tabulated in an annexure to the memorandum of defence amounting to Kshs. 205,471.98 after off-setting the claimant's liabilities to the Sacco, and the court held the claimant should contend with this figure.

p. 6
03

Who bears the costs of the cause

Holding

Costs awarded to the respondent

Reasoning

Because the claimant failed in his claim, the court exercised its discretion to award costs to the respondent, holding the claimant could not be allowed to take the whole world on a wandering spree at the respondent's costs.

p. 6

Legal principles established

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  • A claimant alleging wrongful, unfair and unlawful termination bears the burden of proving it on a balance of probabilities; mere denial without rebutting evidence fails.

Court orders

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  1. 1.The respondent to meet and pay the admitted amount of Kshs. 205,471.98 to the claimant within thirty (30) days of the order of court
  2. 2.The costs of the cause to be borne by the claimant

Authorities

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Legislation

  • Constitution of Kenya, 2010Provisions relating to employment and labour relations disputes dispensation and settlement
Jurisdiction invoked
Constitution of Kenya, 2010 provisions relating to employment and labour relations disputes dispensation and settlement (matter transferred from the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "George Kingori Gathogo v Kenpipe Co-operative Savings & Credit Society [2014] KEELRC 67 (KLR)", Case Analysis (2014). Cause No. 1089 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/67/eng@2014-12-05

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