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ELRCDismissedCause No 711 of 2012· [2014] KEELRC 996 (KLR)

Michael Nthenge v Kenya Aurotech Limited [2014] KEELRC 996 (KLR)

Industrial Court of Kenya
21 May 2014
LNLinnet Ndolo
559 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an employee's claim because he didn't prove his case, even though his employer never showed up to defend it.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1 February 2005, was arrested and charged in December 2007 with stealing by servant contrary to Section 281 of the Penal Code following a complaint by the Respondent. He was acquitted on 30 January 2012. He sued for a declaration of constructive dismissal, unpaid salaries from November 2007 to March 2012 (Kshs. 1,166,000), unpaid leave (Kshs. 17,400), one month's salary in lieu of notice (Kshs. 22,000), 12 months' salary as compensation for unfair termination (Kshs. 264,000), a certificate of service and costs. The Respondent neither entered appearance nor filed a defence, so the claim proceeded ex parte; the Claimant elected not to give sworn testimony and relied on his pleadings and written submissions. The court framed the sole issue as whether the Claimant had made out a case for unfair termination. Applying Section 47(5) of the Employment Act, 2007, the court held that the burden of proving unfair termination rests on the employee and does not shift or diminish merely because the claim is undefended. Adopting the definition of constructive dismissal in Emmanuel Mutisya Solomon v Agility Logistics, the court held that a complaint made by an employer to the police does not constitute circumstances leading to constructive dismissal, and there was no evidence that the Claimant sought to return to work and was locked out. The claim failed in its entirety and was dismissed with no order for costs.

Key legal issues

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01

Whether the criminal complaint and charges preferred against the Claimant amounted to constructive dismissal

Holding

The claim for constructive dismissal was not proved; a police complaint by an employer is not constructive dismissal and there was no evidence the Claimant was locked out when seeking to return to work

Reasoning

Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee, and this burden does not shift even where the claim is undefended. The only evidence was the complaint leading to criminal charges, of which the Claimant was acquitted. Constructive dismissal requires circumstances rendering continued employment intolerable. A police complaint does not meet that threshold, and no evidence showed the Claimant sought to return to work and was locked out.

p. 2

Legal principles established

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  • The burden of proof resting on the employee in an unfair termination claim does not shift or diminish merely because the claim is undefended
  • A complaint made by an employer to the police against an employee does not amount to constructive dismissal

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.No order for costs

Authorities

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Legislation

  • Penal CodeSection 281
  • Employment ActSection 47(5)

Cases cited (1)

  • Emmanuel Mutisya Solomon Vs Agility Logistics
    Industrial Court Cause No 1448 of 2011
Jurisdiction invoked
Jurisdiction under the Industrial Court over employment and labour relations disputes (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Michael Nthenge v Kenya Aurotech Limited [2014] KEELRC 996 (KLR)", Case Analysis (2014). Cause No 711 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/996/eng@2014-05-21

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