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ELRCDismissedMemorandum of Claim dated 27th October, 2015· [2016] KEELRC 1095 (KLR)

George Morara Nyakioba v Mini Bakeries (Nairobi) Limited [2016] KEELRC 1095 (KLR)

Industrial Court (Employment and Labour Relations Court)
3 June 2016
DMD.K. Njagi Marete
3,271 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 upheld a bakery worker's dismissal because the employer could document a fair disciplinary process, dismissing his Kshs. 2.1 million claim.

What this practically means

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Executive summary

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The claimant, George Morara Nyakiora, sued by a Memorandum of Claim dated 27th October 2015 alleging that he was orally employed by the respondent as an oven man from 1st August 2000, was confirmed by a letter of appointment dated 2nd June 2011, and was orally and unfairly dismissed on 30th August 2015 on allegations of stealing 1.5 litres of utto oil without being afforded a hearing, contrary to sections 41, 43, 44 and 45 of the Employment Act, 2007. He sought Kshs. 2,141,140/- comprising notice pay, unpaid wages, leave dues, severance pay, compensation for unfair termination, unfair deductions, leave travel and acting allowances, a declaration of unfair termination, a discharge order for Jubilee Insurance savings, a certificate of service and costs. The respondent denied the claim, at first denying the employment relationship altogether and alternatively alleging misconduct including absenteeism, carelessness and theft, and asserting due disciplinary process culminating in a valid termination. The court framed four issues: existence of employment, fairness of termination, entitlement to relief, and costs. On the first issue, the respondent abandoned the denial of employment in submissions, so the court found an employment relationship, invoking sections 9(2), 10(7) and 74 of the Employment Act. On the second issue, the court found the respondent had followed a disciplinary process - warnings, disciplinary committee minutes attended by the claimant, a notice to show cause, suspension and termination - and concluded the termination was lawful. The claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether an employment relationship existed despite the respondent's denial

Holding

Employment found, essentially because the respondent abandoned the denial in its submissions, leaving the claimant's evidence uncontroverted

Reasoning

The claimant relied on a letter of appointment and a collective agreement, and on sections 9, 10(7) and 74 of the Employment Act placing record-keeping burdens on the employer. The respondent's submissions did not pursue the denial of employment, so the court had no option but to find employment.

p. 5
02

Whether the termination was wrongful, unfair and unlawful

Holding

Termination found lawful; the claimant failed to demonstrate unfair termination

Reasoning

The respondent showed a disciplinary process: warnings and memos for absenteeism, disciplinary committee minutes attended by the claimant, a show-cause notice, suspension and a notice of termination. The court held the respondent's case overwhelmed the claimant's, who had fallen short through misconduct.

p. 8

Legal principles established

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  • Parties must pursue their pleadings sequentially and logically; raising inconsistent and abandoned defences is improper
  • Where an employer fails to produce a written contract in legal proceedings, the employer must prove or disprove the alleged term of the employment relationship

Court orders

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  1. 1.Dismissal of the claim
  2. 2.Each party to bear its own costs of the claim
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Industrial Court); claim brought 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, "George Morara Nyakioba v Mini Bakeries (Nairobi) Limited [2016] KEELRC 1095 (KLR)", Case Analysis (2016). Memorandum of Claim dated 27th October, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1095/eng@2016-06-03

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