Thomas Mambo Otwabe & 3 others v Tumac Engineering Services Ltd [2015] KEELRC 862 (KLR)
The bottom line
#A Kenyan employer that fails to show up and prove its case will lose an unfair termination claim, even without strong employee evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were employees of the respondent
The claimants were employees of the respondent by virtue of admissions in the Statement of Defence and the uncontroverted letters of appointment
The defence at paragraph 6 admitted that notice of termination was issued and that dismissal was justified, which is an admission of employment and dismissal. Although the unsigned submissions contended the claimants were never employees, submissions are not pleadings and cannot contest admitted facts. No evidence was adduced by the respondent to controvert the letters of appointment annexed to the claim.
Whether the claimants were unfairly terminated
The termination was unfair; the respondent failed to disprove the claimants' allegations under Section 10(7) of the Employment Act
The respondent called no witness and adduced no evidence to controvert the claim or challenge the testimony of the 4th claimant who testified on behalf of the others. The employer failed to justify the grounds of termination as required by Section 47(5) of the Employment Act, and Section 10(7) applied in the claimants' favour.
Whether the claimants are entitled to the reliefs sought
Entitled to pay in lieu of notice, salary arrears, leave (3rd claimant) and one month's compensation each; NSSF/NHIF claims dismissed as unproved
Having found unfair termination, the claimants were entitled to notice pay and compensation. Since none had worked a full year and the termination was in substance a redundancy effected without notification under Section 40, one month's compensation each was awarded. NSSF and NHIF claims failed for want of statements proving non-remittance.
Legal principles established
#- Submissions are not pleadings and cannot be used to contest facts admitted in a party's pleading
- Where an employer fails to adduce evidence to disprove an employee's allegations, the court may decide in the employee's favour by virtue of Section 10(7) of the Employment Act
Court orders
#- 1.Declaration that the termination of the employment of the claimants was unfair
- 2.1st claimant to be paid Kshs 500,000 (1 month pay in lieu of notice Kshs 100,000; 3 months salary arrears Kshs 300,000; 1 month salary compensation Kshs 100,000)
- 3.2nd claimant to be paid Kshs 150,000 (1 month salary in lieu of notice Kshs 30,000; 3 months salary arrears Kshs 90,000; 1 month salary compensation Kshs 30,000)
- 4.3rd claimant to be paid Kshs 165,750 (1 month salary in lieu of notice Kshs 30,000; 3 months salary arrears Kshs 90,000; 1 month salary compensation Kshs 30,000; annual leave February to October 2011 (9 months) Kshs 15,750)
- 5.4th claimant to be paid Kshs 150,000 (1 month salary in lieu of notice Kshs 30,000; 3 months salary arrears Kshs 90,000; 1 month salary compensation Kshs 30,000)
- 6.Respondent to pay costs of the claimants' case
- 7.Decretal sum to attract interest at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair/wrongful termination and terminal benefits); specific section not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Mambo Otwabe & 3 others v Tumac Engineering Services Ltd [2015] KEELRC 862 (KLR)", Case Analysis (2015). Not stated in judgment (Memorandum of Claim dated 24th February 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/862/eng@2015-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.