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ELRCPartially AllowedNot stated in the excerpt· [2014] KEELRC 1339 (KLR)

Silvanus Anyanga v Bina Wholesalers Limited [2014] KEELRC 1339 (KLR)

Employment and Labour Relations Court
17 October 2014
BOByram Ongaya
388 words in judgment
View original judgmentRead on Kenya Law Watch case
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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, represented by Gordon Ogola & Associates, filed a memorandum of claim on 20 April 2011 against the respondent, seeking one month's pay in lieu of notice, overtime pay, pay for rest days/Sundays, underpayments, compensation for unfair termination totalling Kshs. 185,905.00, a certificate of service, and costs. The respondent, through Tariq Khan & Advocates, sought dismissal or striking out of the suit. At the hearing on 16 July 2014 the respondent did not attend, and the claimant relied on pleadings, documents and written submissions without giving oral evidence. The court framed three issues: whether the termination was unfair; whether the claimant was a shop assistant or general worker; and entitlement to remedies. Finding no evidence to resolve any issue, the court held that submissions on the alleged verbal termination of 18 February 2009, on the nature of employment bearing on underpayment, and on overtime all hung in a vacuum for want of evidence. The quantified claims therefore failed. However, because the employment relationship itself was not in dispute, the court held the claimant entitled to a certificate of service. Judgment was entered on 17 October 2014 ordering the respondent to deliver the certificate of service by 1 December 2014, with each party bearing its own costs. The suit succeeded only on the certificate of service head and was otherwise dismissed for want of evidence.

Key legal issues

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01

Effect of failure to adduce evidence on claims

Holding

Claims unsupported by evidence cannot be determined and fail

Reasoning

The claimant relied on pleadings, documents and submissions without giving oral evidence. The court found that submissions without evidential support hang in a vacuum. The alleged verbal termination, the nature of employment, and overtime claims all required evidence that was not on record, so those heads failed.

p. 1
02

Entitlement to certificate of service

Holding

Certificate of service granted as the employment relationship was undisputed

Reasoning

Although the unfair termination and quantified claims failed for want of evidence, the existence of the employment relationship was not contested by the respondent, who did not attend court. As a statutory entitlement flowing from employment, the certificate of service was ordered.

p. 1

Legal principles established

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  • An employee is entitled to a certificate of service where the employment relationship is not in dispute

Court orders

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  1. 1.The respondent to deliver the certificate of service by 1.12.2014.
  2. 2.Each party to bear own costs of the suit.
Jurisdiction invoked
Employment and labour relations jurisdiction of the ELRC (employment claim for unfair termination)

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, "Silvanus Anyanga v Bina Wholesalers Limited [2014] KEELRC 1339 (KLR)", Case Analysis (2014). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1339/eng@2014-10-17

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