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ELRCDismissedCause No 979 of 2010· [2015] KEELRC 47 (KLR)

Amina Bakari Babu v Indu Farm (EPZ) Limited [2015] KEELRC 47 (KLR)

Employment and Labour Relations Court
9 December 2015
801 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee who doesn't present evidence in court loses her case, no matter how strong her written claims sound.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent in 2002 as a cleaner on Mombasa Road at Kshs 295 per day, sued for wrongful termination of employment and non-payment of terminal dues, alleging verbal termination on 15 July 2009, absence of a written contract, and refusal of a certificate of service. She claimed severance pay, accrued annual leave, public holiday pay and overtime, each for seven years, plus costs and interest. The Respondent denied the claims in a memorandum of defence, asserting the Claimant was a casual employee paid a daily wage and duly compensated for any overtime or public holiday work. It pleaded that on 15 July 2009, after a colleague reported items missing from her locker, a snap search found the missing items with the Claimant, who refused to record a statement and never returned to work. At determination, the court held that the burden of proving the particulars of claim lies on the party who asserts. The Claimant opted not to adduce evidence, her averments were unsubstantiated by any documentary or oral evidence, and she filed no reply to the statement of response to join issues. The court found she worked only from time to time for a daily wage, was paid for overtime and public holidays worked, and accepted the Respondent's unchallenged account that she was caught with stolen property and never returned. Holding that the averments of wrongful dismissal were bare and unsupported, the court dismissed the entire suit for lack of proof to the standard required, with costs to the Respondent.

Key legal issues

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01

Burden of proof in wrongful termination and terminal dues claims

Holding

The Claimant, having elected not to adduce evidence and having filed no reply to the defence, failed to discharge the burden on a balance of probabilities; the court accepted the Respondent's version that she was caught with a colleague's stolen property and never returned to work

Reasoning

The court held that the burden lies on the claimant who asserts. The claimant opted not to adduce evidence in support of the memorandum of claim, which contained bare, unsubstantiated averments. She also failed to file a reply to the statement of response, leaving the court to accept the respondent's unchallenged version of the casual employment, the snap search, and her failure to return.

p. 2
02

Continuous service, leave, overtime and public holiday pay

Holding

The court found the Claimant worked for the Respondent only from time to time on a daily wage and was duly paid for any overtime or public holiday work

Reasoning

Because the Claimant produced no documentary or oral evidence of continuous seven-year service, leave denial, overtime or unpaid public holiday work, the claims remained hollow averments. The claims had been denied by the Respondent, and the absence of a reply meant those denials stood uncontroverted, so the claims failed in their entirety.

p. 2

Legal principles established

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  • The burden of proving the particulars of a claim lies on the party who asserts, and unproved averments cannot found an award
  • A claimant who fails to discharge the burden of proof on a balance of probabilities fails in the claim

Court orders

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  1. 1.The entire suit is dismissed for lack of proof to the standard required
  2. 2.Costs awarded to the Respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute)

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, "Amina Bakari Babu v Indu Farm (EPZ) Limited [2015] KEELRC 47 (KLR)", Case Analysis (2015). Cause No 979 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/47/eng@2015-12-09

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