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ELRCDismissedCause No. 21 of 2015 (consolidated lead case; consolidated with Cause No.21 of 2015)· [2016] KEELRC 1164 (KLR)

Mike Kibera Miranga v James Finlays (K) Ltd [2016] KEELRC 1164 (KLR)

Industrial Court (Employment and Labour Relations Court)
19 May 2016
DMD.K.Njagi Marete
1,277 words in judgment
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The bottom line

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A Kenyan employment claim failed because the worker could not disprove that his fixed-term contract simply expired, showing evidence wins these cases.

What this practically means

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Executive summary

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The claimant, sued by memorandum of claim dated 22nd September 2014, alleged he was employed by the respondent from 2012 to 2013, was unlawfully terminated without notice, severance, leave pay or service gratuity, and was grossly underpaid contrary to the Regulation of Wages (General) (Amendment) Order, claiming Kshs.162,272 plus declarations. The respondent denied the claim, asserting the grievant was employed on a five months fixed term seasonal contract from 18th June 2013 under the KTGA/KPAWU CBA, was served with two weeks' notice in accordance with clause 20(c)(ii) of the CBA, and was paid terminal dues of Kshs.14,999.64. The court framed four issues: whether there was a termination, whether it was wrongful, unfair and unlawful, entitlement to relief, and costs. The court held the claimant failed to prove his case on a preponderance of evidence; he did not controvert the respondent's case of a fixed term contract which lapsed. Citing the doctrine that he who alleges must prove, the court found lawful termination, whereupon the unfair termination and relief issues fell away. The respondent's authorities on fixed term contracts were cited by counsel. The claim was dismissed with each party bearing their own costs, in a judgment delivered on 19th May 2016 by D.K.Njagi Marete J.

Key legal issues

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01

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

Holding

Yes - lawful termination on expiry of a fixed term contract

Reasoning

The claimant did not controvert the respondent's evidence of a five months' fixed term seasonal contract under the KTGA/KPAWU CBA, served with two weeks' notice and paid terminal dues of Kshs.14,999.64. The respondent's case prevailed on a preponderance of evidence.

p. 3
02

Whether the termination was wrongful, unfair and unlawful and whether relief is due

Holding

No; the claim fails

Reasoning

Having found lawful termination, the unfair termination and terminal dues claims collapse. The claimant, employed on a fixed term contract which lapsed, had no entitlement to notice pay, service gratuity, leave or 12 months' compensation.

p. 3
03

Costs

Holding

Each party to bear their own costs

Reasoning

The court, having dismissed the claim, declined to award costs to the respondent and ordered each party to bear their own costs of the claim.

p. 4

Legal principles established

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  • He who alleges must prove; the claimant bears the duty of proving his case on a preponderance of evidence

Court orders

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  1. 1.Dismissal of the claimant's claim
  2. 2.Each party to bear their own costs of the claim

Authorities

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Legislation

  • Employment Acts.35(c)(5)
  • Employment Acts.10(3)
  • Regulation of Wages (General) (Amendment) Orderin force at the time of employment

Cases cited (4)

  • Anne Theuri vs Kadet Limited
    Industrial Cause No.368 (N) of 2009
  • Samuel Chacha vs Kenya Medical Research Institute
    Cause No.1901 of 2013
  • Kyangavo vs KCB
    Case No.428 of 2001
  • SA Rugby (PTY) vs CCMA & Others
    [2006] 27 ILJ 1041 (LC)
Jurisdiction invoked
Employment and labour relations jurisdiction over the Memorandum of Claim under the Employment Act

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, "Mike Kibera Miranga v James Finlays (K) Ltd [2016] KEELRC 1164 (KLR)", Case Analysis (2016). Cause No. 21 of 2015 (consolidated lead case; consolidated with Cause No.21 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1164/eng@2016-05-19

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