Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment (ELC Cause, filed 19th November 2012)· [2015] KEELRC 1017 (KLR)

Peter Odhiambo Oriwo v Labchem Limited [2015] KEELRC 1017 (KLR)

Employment and Labour Relations Court
25 May 2015
NMNzioki wa Makau
2,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan employee claiming unfair dismissal lost because he couldn't prove he was actually fired, but still won his unpaid leave, wages and a service certificate.

What this practically means

#

Executive summary

#
The Claimant, employed as a driver, sued the Respondent alleging unlawful and malicious termination of employment on 13th/14th April 2011 following his arrest over an alleged theft by servant. He claimed he was arrested at the godown, released the next day, and denied re-entry to the premises, and sought notice pay, leave pay, payment for the remainder of the contract, service pay, a certificate of service, and 12 months' salary as compensation under Section 41 of the Employment Act. The Respondent denied dismissal, asserting the Claimant, in collusion with the storekeeper, loaded unauthorized goods to an unauthorized destination (Crown Chemicals), was arrested and released, and thereafter absconded. Four witnesses testified for the defence, including the general manager and the investigating police officer, who confirmed the theft complaint was withdrawn after the complainant forgave the suspects. The court held that Section 41 applies only where there is a termination, and that the Claimant failed to prove termination on a balance of probabilities; he had been informed he was deemed to have absconded and his advocate had been asked to tabulate dues, with no rebuttal. The claim for termination-based remedies was therefore dismissed. However, the court awarded terminal dues - unpaid leave days and pay for days worked - to be computed and paid by the Respondent, and ordered a Certificate of Service under Section 51. As the claim was largely unsuccessful, each party was ordered to bear their own costs. Judgment delivered at Nairobi on 25th May 2015 by Nzioki wa Makau J.

Key legal issues

#
01

Whether there was a termination of employment

Holding

No termination was proved; the evidence pointed to abscondment after the Claimant's arrest and release

Reasoning

The court held Section 41 applies only to terminations. The Claimant failed to prove his case. The Respondent's position that he was deemed to have absconded, communicated through an advocate's letter tabulating dues, was not rebutted. The Claimant did not resume work after release from police custody.

p. 4
02

Burden and standard of proof in unfair termination claims

Holding

The Claimant failed to discharge the burden of proving his case on a balance of probabilities

Reasoning

The court applied the principle that he who alleges must prove. Despite the arrest and denial of access to the premises, the Claimant adduced no evidence of a letter of termination or other act of dismissal by the employer, and the defence evidence of abscondment stood unrebutted.

p. 4
03

Terminal dues and certificate of service

Holding

Even on failure of the main claim, the Claimant was entitled to unpaid leave days, pay for days worked, and a Certificate of Service under Section 51

Reasoning

The court distinguished the failed unfair termination claim from statutory entitlements accrued during employment. It ordered the Respondent to compute and pay leave days not taken and pay for days worked, and to issue a certificate of service as required by Section 51 of the Employment Act.

p. 4

Legal principles established

#
  • Section 41 of the Employment Act on procedural fairness applies only where there is a termination of employment
  • A claimant alleging unfair termination bears the burden of proving it on a balance of probabilities
  • An employee deemed to have absconded, whose advocate was informed of accrued dues, who does not rebut, has not proved a termination

Court orders

#
  1. 1.The Claimant's claim for unlawful termination is dismissed for failure of proof
  2. 2.The Respondent to compute and pay the Claimant's terminal dues, namely payment of leave days not taken and pay for days worked
  3. 3.The Respondent to issue the Claimant a Certificate of Service under Section 51 of the Employment Act
  4. 4.Each party to bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction (specific provision not stated in judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Odhiambo Oriwo v Labchem Limited [2015] KEELRC 1017 (KLR)", Case Analysis (2015). Not stated in judgment (ELC Cause, filed 19th November 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1017/eng@2015-05-25

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