Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissed· [2015] KEELRC 1192 (KLR)

Rachael Akoth Onyango v Rentokil (K) Limited [2015] KEELRC 1192 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
24 March 2015
NMNzioki wa Makau
1,385 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed an unfair termination claim because the employee could not prove she was actually dismissed, highlighting the need for solid evidence.

What this practically means

#

Executive summary

#
The Claimant sued on 4th September 2012 alleging wrongful dismissal from employment with the Respondent, whom she said employed her from 1st March 2005 until termination on 1st October 2010. She sought a declaration that her sacking was illegal and unlawful, severance pay, terminal benefits, three months' salary in lieu of notice, unpaid leave, salary underpayments and gratuity totalling Kshs. 110,000, general damages, costs and interest. The Respondent denied dismissal, contending she was given 90 days sick off after a road traffic accident of 30th December 2009, continued to receive salary until September 2010, and later sought a certificate of service; it asked for dismissal of the suit with costs. Both parties filed submissions, the Claimant relying on Gilbert Muchina v Scarce Commodities Ltd and Sylvester Oduor Othwila v Phoenix Aviation Limited, the Respondent on Daniel Mueke v Bhogals Auto World. The court framed two issues: whether the Claimant absconded or was dismissed, and what relief she would be entitled to if dismissed. It found the Claimant's testimony internally inconsistent regarding the duration of her hospitalisation and incapacity, and held that she had not proved dismissal. She had been paid salary up to September 2010 and had obtained a certificate of service without dismissal. The court held she failed to discharge her burden under Section 47(5) of the Employment Act on a balance of probabilities, dismissed the suit, and made no order as to costs.

Key legal issues

#
01

Whether the Claimant was dismissed or absconded/resigned

Holding

The Claimant failed to prove any dismissal; she was paid salary until September 2010 and was not dismissed

Reasoning

The court weighed the Claimant's contradictory testimony (hospital stays variously described as 6 months, 2 months plus follow-up, or 90 days sick off) against the Respondent's evidence that she was paid until September 2010 and issued a certificate of service on request. Her credibility was found wanting; the conundrum was of her own making, and she did not prove termination.

p. 3
02

Entitlement to relief

Holding

No relief was granted because the foundational claim of dismissal was not proved

Reasoning

Having failed to prove dismissal on a balance of probabilities as required by Section 47(5) of the Employment Act, the Claimant's claims for notice pay, severance, leave, underpayments and damages all fell away. The suit was dismissed with no order as to costs.

p. 3

Legal principles established

#
  • An employee alleging unfair termination bears the burden of proving the facts relied upon under Section 47(5) of the Employment Act on a balance of probabilities

Court orders

#
  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

#

Legislation

  • Employment ActSection 35
  • Employment ActSection 47(5)

Cases cited (3)

  • Gilbert Muchina v Scarce Commodities Ltd
    [2014] eKLR
  • Sylvester Oduor Othwila v Phoenix Aviation Limited
    [2014] eKLR
  • Daniel Mueke v Bhogals Auto World
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for wrongful dismissal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rachael Akoth Onyango v Rentokil (K) Limited [2015] KEELRC 1192 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1192/eng@2015-03-24

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