Isaac Nyamosi Nyangau v Gilani’s Supermarket Ltd [2016] KEELRC 1651 (KLR)
The bottom line
#A Kenyan court threw out an employee's unfair dismissal claim entirely because the case was filed with a false sworn statement, and ordered his lawyer to personally pay the supermarket's costs.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination
The Claimant was given an opportunity to be heard before disciplinary action but ignored it; termination complied with procedural fairness.
The Respondent produced prior warning letters and show cause notices and minutes of Labour Officer conciliation in which the Claimant admitted receiving but refusing to acknowledge the show cause letter of 6 March 2014. On the weight of this documentary evidence the Court preferred the Respondent's account and held the Claimant was afforded a hearing which he wasted by failing to respond or cooperate.
Substantive fairness of termination
Termination was for valid and fair reasons given the prior warnings, show cause notices and the Claimant's refusal to cooperate in the disciplinary process.
The stated ground was gross misconduct founded on poor performance, absenteeism and refusal to acknowledge a show cause letter. The Court held the Respondent proved this reason valid and fair under sections 43 and 45 of the Employment Act, treating the previous warnings as aggravating circumstances and emphasising the personal nature of a contract of service.
Competency of the Cause - false verifying affidavit
The Cause was incompetent because the Memorandum of Claim was predicated on a false affidavit, and was struck out with a personal costs order against the Claimant's advocate.
The Claimant admitted he neither swore nor signed the verifying affidavit. Distinguishing defective affidavits (where courts may permit filing of a fresh affidavit) from false affidavits, the Court held the latter is a more serious matter requiring severe action, and struck out the Claim, directing Mr. Korongo Esq. Advocate to personally bear the Respondent's costs assessed at Kshs 49,000/-.
Overtime, offs and annual leave
Claims for rest-day offs and unitemised holiday overtime failed for lack of proof; specific sums for overtime (Kshs 291/-), leave (Kshs 9,205/-), March 2014 wages and one month's notice in lieu would have been payable.
The Claimant led no evidence of contractually agreed hours or the specific public holidays worked, and attendance records showed weekly breaks, defeating the offs claim. The Respondent's final dues computation established sums for overtime and accrued leave; the Respondent's witness admitted the Claimant was not summarily dismissed, entitling him to one month's notice pay. These computations were overtaken by the striking out of the Cause.
Legal principles established
#- There is an implied term in every employment contract that an employee will cooperate with an employer in the course of a disciplinary process.
- A claim founded on a verifying affidavit that was neither sworn nor signed by the claimant is not merely defective but false, warranting striking out and a personal costs order against counsel.
- An employer bears the burden of proving that the reason for termination is valid and fair under sections 43 and 45 of the Employment Act, 2007.
Court orders
#- 1.The Cause is declared incompetent and struck out
- 2.Mr. Korongo, Esq., Advocate ordered to personally meet the Respondent's costs of defending the Cause, assessed at Kshs 49,000/-
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment and Labour Relations Court Act; Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Nyamosi Nyangau v Gilani’s Supermarket Ltd [2016] KEELRC 1651 (KLR)", Case Analysis (2016). Cause No 307 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1651/eng@2016-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.