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ELRCDismissedMemorandum of Claim dated 14th September, 2015· [2016] KEELRC 271 (KLR)

Maritim Japhet Kiplimo v Mediheal Hospital & Fertility Centre Limited [2016] KEELRC 271 (KLR)

Employment and Labour Relations Court
14 November 2016
DMD.K. Njagi Marete
1,549 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a worker's unfair termination claim because the employer's evidence about why he left was more believable than his own.

What this practically means

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Executive summary

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The claimant sued the respondent alleging that he was orally employed as a supervisor at Kshs.12,500 per month and unfairly, unlawfully and unprocedurally terminated on 14th February 2015, the day the fifth floor of the respondent's new wing caught fire. He claimed notice pay, house allowance, leave dues, compensation for unfair termination under section 49(c) of the Employment Act, February wages, severance pay and overtime, totalling Kshs.833,251.41, plus a declaration of unfair termination, a certificate of service under section 51, and costs. The respondent denied the existence of any contract of employment or enforceable relationship, asserting the claimant left the workplace after the fire and never returned, and prayed for dismissal with costs. The court framed four issues: whether there was termination, whether it was wrongful, whether relief was due, and costs. It noted the claimant's demeanour was untruthful and self-defeating, while DW1 Maryline Langat acknowledged his employment but testified he was on duty on the night of the fire, failed to put off the boiler, wrote an apology letter and left never to return. Applying the balance of probability and preponderance of evidence, the court preferred the respondent's version and found lawful termination. The claim was dismissed with each party bearing their own costs. Judgment was delivered on 14th November 2016 by D.K. Njagi Marete, J.

Key legal issues

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01

Whether the claimant was an employee of the respondent and whether his employment was terminated

Holding

The claimant's evidence was untruthful and self-defeating; the respondent's account that he left after the fire incident and never returned prevailed, so lawful termination was found

Reasoning

The court weighed the claimant's testimony (off duty on the night of the fire) against DW1's testimony that he was on duty, failed to put off the boiler, wrote an apology letter and left never to return. The claimant's demeanour was found untruthful. Applying the balance of probability, the respondent's version was the more probable.

p. 4
02

Whether the claimant is entitled to the reliefs sought

Holding

Having found lawful termination, none of the reliefs sought are available and the second issue lapses

Reasoning

Because termination was found lawful rather than unfair, there is no basis for compensation under section 49(c) of the Employment Act, notice pay, house allowance, leave dues, severance or overtime. The claim was dismissed with no order as to costs beyond each party bearing their own.

p. 4

Legal principles established

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  • Where parties give diametrically opposed versions of events, the court determines the dispute on a balance of probability and preponderance of evidence

Court orders

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  1. 1.Dismissal of the claim with orders that each party bears their own costs of the claim

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(2)
  • Employment ActSection 44(4)
  • Employment ActSection 35(b)
  • Employment ActSection 51
  • Employment ActSection 31
  • Employment ActSection 27(1)
  • Employment ActSection 49(c)
  • Labour Institution ActSection 15(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007

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, "Maritim Japhet Kiplimo v Mediheal Hospital & Fertility Centre Limited [2016] KEELRC 271 (KLR)", Case Analysis (2016). Memorandum of Claim dated 14th September, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/271/eng@2016-11-14

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