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ELRCDismissedCause No. 144 of 2016· [2016] KEELRC 135 (KLR)

Philip Kibitok Sitienei v Nandi Tea Estates Limited [2016] KEELRC 135 (KLR)

Employment & Labour Relations Court of Kenya
8 December 2016
DMD. K. Njagi Marete
1,321 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 dismissed a worker's unfair dismissal and injury claim because he could not prove he was actually dismissed.

What this practically means

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Executive summary

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The claimant, engaged as a Tea Plucker in January 2016, alleged that his employment was dismissed on 1st June 2016 in a manner that was unfair and unlawful, contrary to Article 41 of the Constitution, and that on 18th March 2016 he was bitten by a wild dog while on duty, sustaining septic and necrotic wounds for which he sought damages, including Kshs.150,000 for future medical treatment and, in submissions, Kshs.800,000 general damages. He sought a declaration of unfair termination, reinstatement with back pay, or alternatively one month's salary in lieu of notice and twelve months' salary as compensation. The respondent denied ever terminating the claimant, asserting he deserted duty after falling sick from a wild dog bite, and in toto denied liability for the injuries. The court framed four issues, chief of which was whether any termination occurred. Reviewing the claimant's documents, Marete J found they documented treatment for a dog bite but established no nexus between the bite, the treatment and the alleged termination. The claimant failed to discharge his burden of proving the claim on a balance of probabilities, particularly given the respondent's denial of termination. The court found as a fact that there was no termination of employment; the remaining issues abated. The entire claim was dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether there was a termination of the claimant's employment by the respondent

Holding

No termination of employment was proved; the court found a case of no termination.

Reasoning

The claimant alleged unprocedural and unlawful termination; the respondent denied any termination and asserted desertion of duty after the claimant fell sick from a wild dog bite. The claimant's documentary evidence only documented treatment for a dog bite but did not link the sickness, treatment and alleged termination. Having failed to adduce evidence to prove termination on a balance of probabilities against a backdrop of the respondent's blatant denial, the first issue was answered against the claimant.

p. 4
02

Whether the claimant was entitled to the relief sought

Holding

No; with a finding of no termination, the remaining issues abated and the claim was dismissed.

Reasoning

Since the court found no termination of employment, the consequential issues of unfair termination, compensation and associated relief fell away and required no consideration. The claimant's claim of Kshs.150,000 for future treatment and Kshs.800,000 general damages for injuries was unsupported by any evidence connecting the injuries to the employment or the dismissal. The claim was therefore dismissed in its entirety with no order as to costs.

p. 4

Legal principles established

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  • A claimant bears the burden of proving his claim on a balance of probabilities, particularly where the material facts (such as termination of employment) are denied by the respondent.

Court orders

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  1. 1.The claim is dismissed.
  2. 2.Each party bears their own costs of the claim.
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment & Labour Relations Court (dispute over termination and injuries in the course of employment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Philip Kibitok Sitienei v Nandi Tea Estates Limited [2016] KEELRC 135 (KLR)", Case Analysis (2016). Cause No. 144 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/135/eng@2016-12-08

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