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ELRCDismissedMemorandum of Claim dated 22nd September, 2015· [2015] KEELRC 119 (KLR)

Edward Kipyego Biwott v Koisagat Tea Estate Limited [2015] KEELRC 119 (KLR)

Employment and Labour Relations Court
30 November 2015
DMD.K.Njagi Marete
2,434 words in judgment
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The bottom line

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A Kenyan court dismissed a watchman's unfair termination claim because the employer's written records showed the dismissal was lawful, though he still got his service certificate.

What this practically means

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Executive summary

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The claimant, a watchman employed by the respondent, sued alleging wrongful, unprocedural and unfair summary dismissal on 9th May, 2015 on allegations of wilful neglect of duty and concealment of incidents at Lugari Zonal Forest. He sought a declaration of unfair termination, KSHS.379,494/- comprising notice pay, leave dues, service benefits, twelve months' compensation, unpaid public holidays, house allowance, overtime and underpayment of wages, plus costs, interest and a certificate of service under section 51 of the Employment Act, 2007. He relied on sections 35, 36, 41, 43, 44(4) and 45(2) of the Employment Act and Articles 41 and 47 of the Constitution, contending he was never issued a show cause letter nor accorded a hearing. The respondent filed a response denying the claim, annexing a show cause letter, suspension letter, summary dismissal letter, a letter of apology by the claimant and a witness statement of the General Manager, Daniel Kiptanui Keter, but did not appear at trial. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. Applying the balance of probabilities and preponderance of evidence, the court found the documentary defence sequence credible and the termination lawful. It declined to reward the claimant's default, dismissed the claim, declined costs on the view that costs do not universally follow the event, but ordered the respondent to issue a certificate of service as the law dictates.

Key legal issues

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01

Whether the summary dismissal was wrongful, unfair and unlawful

Holding

The court found the termination lawful on a balance of probabilities, preferring the respondent's documented defence evidence over the claimant's testimony.

Reasoning

The claimant alleged he was not afforded an opportunity to dispute the accusations. The respondent, though absent at trial, had filed a show cause letter, suspension letter, summary dismissal letter, letter of apology by the claimant, and a witness statement of the General Manager narrating the sequence of events. The court found it improbable that the respondent concocted all this evidence and held the defence account credible, establishing lawful termination on a balance of probabilities and preponderance of evidence.

p. 6
02

Entitlement to terminal dues, compensation and other relief

Holding

The claimant, having lost on unfair termination, was not entitled to the monetary relief sought.

Reasoning

The reliefs (notice pay, leave dues, service benefits, 12 months' compensation, unpaid holidays, house allowance, overtime and underpayment) were all premised on a finding of unfair termination. That premise failed, so the relief collapsed with it.

p. 6
03

Certificate of service

Holding

The court ordered the respondent to issue the certificate of service notwithstanding dismissal of the claim.

Reasoning

The claimant sought a certificate of service under section 51 of the Employment Act, 2007 as an independent statutory entitlement. The court granted this head even while dismissing the claim, holding it dictated by the law regardless of the outcome on termination.

p. 6

Legal principles established

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  • Where a party files a credible and substantive defence but fails to attend court to tender it, the court may still determine the matter on its merits on the documents filed.
  • Costs follow the event is not a universal rule; the court retains discretion to deny costs in the interest of fairness.

Court orders

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  1. 1.Dismissal of the claimant's claim
  2. 2.No order as to costs
  3. 3.The respondent to issue the claimant with a certificate of service

Authorities

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Legislation

  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 35(1)(b)(c)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 27(2)
  • Employment Act, 2007Section 51
  • Labour Institutions ActSection 15(c)
  • Legal Notice No. 197 of 2013Minimum wage
  • Constitution of Kenya, 2010Articles 41, 47 (referred to as 77 read 47)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Institutions Act (unfair termination claim)

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, "Edward Kipyego Biwott v Koisagat Tea Estate Limited [2015] KEELRC 119 (KLR)", Case Analysis (2015). Memorandum of Claim dated 22nd September, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/119/eng@2015-11-30

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