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ELRCDismissedIndustrial Cause No. 167 of 2013 (Formerly Nairobi Cause No. 1369 of 2012)· [2015] KEELRC 1652 (KLR)

Alfred Kogo & another v Eldomatt Supermarket Limited [2015] KEELRC 1652 (KLR)

Industrial Court of Kenya at Kisumu
17 December 2015
MOMaureen Onyango
1,245 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim for unpaid leave and overtime failed because the employee's story kept changing and he had signed a settlement document.

What this practically means

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Executive summary

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Two claimants, Alfred Kogo and Benard Okari, sued Eldomatt Supermarket Limited before the Industrial Court at Kisumu seeking terminal dues following termination of their employment in 2012, principally leave dues and overtime. The Respondent denied the claims, asserting the claimants had voluntarily left and been paid all terminal dues, supported by a witness statement of its director J. S. Shah and documents including a 'Full and Final Settlement' tabulating payments. At the hearing on 11th March 2015, counsel for the claimants withdrew the 1st Claimant's (Alfred Kogo's) claim, leaving only Benard Okari's claim for leave due for 11 years and overtime. The 2nd Claimant testified that he was terminated without notice or a chance to be heard and was not paid his dues, but under cross-examination admitted he was given compulsory leave and did not return, and admitted signing and thumb-printing the settlement document showing payment of Shs.197,304 on account of notice, leave and overtime, though he denied receiving the money. His union branch secretary supported the tabulation but relied on information given by the claimant. The Respondent did not call a witness, relying on its pleadings and documents. The court found the claimant's pleadings and testimony inconsistent - the memorandum said he was forced to resign while testimony said he was terminated - making the factual position unclear. The claim was dismissed, with no orders for costs.

Key legal issues

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01

Proof of unfair termination and entitlement to terminal dues

Holding

The 2nd Claimant failed to prove his claim of unfair termination and entitlement to leave and overtime pay

Reasoning

The Claimant's memorandum of claim stated he was forced to resign, while his testimony said he was terminated without notice. Under cross-examination he admitted he was sent on compulsory leave and did not return, and admitted signing and thumb-printing a 'Full and Final Settlement' dated 30th November 2011 showing payment of Shs.197,304, though he denied receiving the money. These contradictions made it impossible to establish the factual position, so the claim failed.

p. 3
02

Scope of issues for determination

Holding

Only the reliefs prayed for in the memorandum of claim (leave due and overtime) fell for determination

Reasoning

The court limited the issues to those actually prayed for in the memorandum of claim. Although unfair termination was discussed, Benard Okari had pleaded only leave due for 11 years and overtime, so those were the only issues for determination.

p. 3

Legal principles established

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  • Where a claimant's pleadings and testimony are inconsistent, the claim is not proved on a balance of probability

Court orders

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  1. 1.The 2nd Claimant's claim is dismissed
  2. 2.No orders for costs - each party to bear their own costs
Jurisdiction invoked
Employment and labour relations dispute under the Industrial Court's jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfred Kogo & another v Eldomatt Supermarket Limited [2015] KEELRC 1652 (KLR)", Case Analysis (2015). Industrial Cause No. 167 of 2013 (Formerly Nairobi Cause No. 1369 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1652/eng@2015-12-17

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