Joshua Olang v Christian Reformed World Relief Committee Kenya [2016] KEELRC 886 (KLR)

The court identified the date of dismissal as December 2006 and held that the statute in force at that time, Cap 226, governed. The Employment Act 2007 only came into force in 2008 and could not apply retrospectively. This aligned with the Respondent's submissions citing authorities against retrospective application of the 2007 Act, and it determined both the procedural and substantive framework for assessing the dismissal and terminal dues.

The termination was said to be with notice pay, yet no evidence showed the $6,000 notice pay was ever paid. Under the repealed Act the employer was required only to make payment of wages due on dismissal for cause. Because the notice pay remained unpaid, the Claimant was entitled to it, but having been dismissed for cause he could not recover damages for the dismissal itself or the unproven allowances claimed.

Although the Claimant asserted entitlement to various allowances and terminal dues, the court found he did not produce any evidence quantifying or establishing them. The Respondent's witness had testified that severance is payable only on redundancy, leave could not be carried over, and the provident fund had been released. The court accepted that without proof the heads of claim could not succeed, illustrating the burden of proof resting on the party asserting a monetary entitlement.

Section 18(1) of Cap 226 required every employer to give a certificate of service on termination, and Section 18(3) made wilful failure an offence. The Respondent's own witness confirmed the Claimant had worked 8 years and raised no objection to issuance. The court therefore directed issuance of the certificate in terms of the section, noting the Respondent ought to have been punished for the failure.