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ELRCPartially AllowedCause No. 196 of 2014· [2016] KEELRC 127 (KLR)

Rudolf Shitandi Daraja v Zablon Juma Atulo t/a Z.J. Atulo & Company Advocates [2016] KEELRC 127 (KLR)

Employment & Labour Relations Court
24 November 2016
MOMaureen Onyango
2,802 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a former clerk unpaid salary and service pay, but dismissed his unfair dismissal claim because he couldn't prove he was fired.

What this practically means

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Executive summary

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The claimant, Rudolf Shitandi Daraja, sued Zablon Juma Atulo t/a Z.J. Atulo & Company Advocates, alleging he was employed as a clerk from 23rd March 2009 at a rising salary, and that his services were unlawfully terminated on 30th July 2013 without notice or a hearing. He sought a declaration of wrongful dismissal, special damages of Kshs. 99,680/-, compensation equivalent to twelve months' gross salary, and costs. The respondent denied the claim, asserting the claimant committed gross misconduct - including impersonating an advocate, preparing and stamping a forged sale agreement using the stamp of Mr. Elungata, and collecting client fees without receipts - and that after a two-week suspension and re-designation as in-house clerk, the claimant refused to report and sought employment elsewhere. The claimant's witness (CW2), who computed the special damages, admitted he was not a registered accountant and did not know whether the claimant contributed to NSSF or NHIF. The court framed the issue as whether the claimant absconded or was dismissed. Applying section 47(5) of the Employment Act and section 107 of the Evidence Act, it held the claimant, bearing the burden of proving wrongful dismissal, failed to discharge it, his word standing against the corroborated evidence of the respondent and RW2. The claims for wrongful dismissal, pay in lieu of notice and leave were dismissed. However, the claimant was awarded shs.31,677.20 service pay for four completed years at 15 days' pay per year, shs.15,838.60 salary for July 2013, and shs.10,000 for reasonable expenses and disbursements, totalling shs.57,515.80, plus a certificate of service, payable within 30 days failing which interest accrues at court rates. The court noted it would have awarded underpayment damages had they been pleaded.

Key legal issues

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01

Whether the claimant was wrongfully dismissed or absconded duty

Holding

The claimant failed to prove wrongful dismissal; his word was against the supported evidence of the respondent and RW2

Reasoning

Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee. The claimant's account that he was dismissed after suspension was contradicted by the respondent and RW2, who testified he refused re-designation as in-house clerk and left. With two sets of probable evidence, the claimant, bearing the burden, had to fail.

p. 4
02

Entitlement to certificate of service, salary for July 2013 and service pay

Holding

Claimant entitled to certificate of service under section 51, unpaid July 2013 salary, and service pay for 4 completed years under section 35(5) as read with 35(6) since NSSF was not remitted

Reasoning

These heads were proved or uncontested: the respondent admitted non-payment of July 2013 salary and of NSSF contributions. Service pay was computed at 15 days' pay per year worked over 4 completed years based on the statutory minimum wage applicable at termination, yielding shs.31,677.20.

p. 5

Legal principles established

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  • In complaints of unfair termination, the employee bears the burden of proving the unfair termination while the employer bears the burden of justifying the grounds for termination
  • Where there are two sets of probable evidence on the same issue, the court must find against the party bearing the burden of proof

Court orders

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  1. 1.Judgment entered for the claimant in the total sum of shs.57,515.80
  2. 2.Award of shs.31,677.20 service pay for 4 completed years at 15 days' pay per year
  3. 3.Award of shs.15,838.60 as salary for July 2013
  4. 4.Award of shs.10,000 on account of reasonable expenses and disbursements
  5. 5.Respondent to issue a certificate of service to the claimant
  6. 6.Payment within 30 days failing which interest to accrue on the entire sum at court rates

Authorities

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Legislation

  • Employment Actsection 45(5)
  • Employment Actsection 47(5)
  • Employment Actsection 51
  • Employment Actsection 35(5)
  • Employment Actsection 35(6)
  • Evidence Actsection 107
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (disputed termination of employment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Rudolf Shitandi Daraja v Zablon Juma Atulo t/a Z.J. Atulo & Company Advocates [2016] KEELRC 127 (KLR)", Case Analysis (2016). Cause No. 196 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/127/eng@2016-11-24

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