Anthony Simiyu Wafula v Thuku Mwangi T/A Nairobi Chips Hotel [2016] KEELRC 1687 (KLR)

Employment & Labour Relations Court of Kenya

17 February 2016

DMD. K. Njagi Marete

1,583 words in judgment

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The bottom line

A Kenyan waiter's unfair dismissal claim failed because he presented no evidence to challenge his employer's misconduct defence, showing employees must actively prove their case in court.

What this practically means

Executive summary

The claimant, Anthony Simiyu Wafula, sued Thuku Mwangi trading as Nairobi Chips Hotel, alleging that he was employed as a waiter from 8th May 2013 and was orally, unfairly and unprocedurally dismissed on 4th April 2015 without payment of terminal dues. He claimed one month's pay in lieu of notice, severance pay, overtime dues, leave dues and twelve months' compensation for unfair termination, totalling Kshs. 352,327.89, contending breaches of Sections 41, 43, 44 and 45 of the Employment Act, 2007 and Article 41 of the Constitution. The respondent denied the claim, asserting the claimant absented himself from duty without permission, received repeated warnings, fared poorly in weekly performance appraisals and was summarily dismissed for gross misconduct with due process observed. By agreement, the dispute was disposed of by written submissions, and the court framed three issues: whether the termination was wrongful, unfair and unlawful; whether the claimant was entitled to the relief sought; and who should bear the costs. Applying Sections 45 and 47(5) of the Employment Act, the court held that the claimant bore the burden of proving unfair termination but tendered no evidence to contradict the respondent's defence of misconduct and absenteeism. On the balance of probabilities, the court found the termination lawful; the remaining issues lapsed and the claim was dismissed with costs to the respondent on 17th February 2016.

Key legal issues

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was lawful; the claimant failed to discharge his evidentiary burden and did not controvert the respondent's case of gross misconduct, absence from duty and poor performance.

Reasoning

The court applied Sections 45 and 47(5) of the Employment Act, under which the employee must prove that unfair termination occurred while the employer must justify the grounds. The claimant relied only on lack of due process and tendered no evidence to contradict the respondent's defence of misconduct, absenteeism and poor performance appraisals. On the balance of probabilities, the court found the dismissal lawful. The authority of Alphonce Machanga Mwachanya v Operation 680 Limited on Section 41 fairness requirements was cited for the claimant but did not sway the outcome.

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Whether the claimant is entitled to the relief sought

Holding

No; the remaining issues lapsed upon the finding of lawful termination.

Reasoning

Having found that the termination was lawful, the court held that the consequential claims for notice pay, severance pay, overtime, leave dues and compensation for unfair termination did not require determination. The other issues therefore lapsed and the entire claim was dismissed with costs to the respondent.

p. 5

Legal principles established

Under Section 47(5) of the Employment Act, the burden of proving that unfair termination or wrongful dismissal occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer.
A termination of employment is unfair under Section 45 of the Employment Act where the employer fails to prove a valid and fair reason and that fair procedure was followed.
Where the claimant tenders no evidence to contradict the employer's defence of gross misconduct, the court may find on the balance of probabilities that the termination was lawful.

Court orders

1.Claim dismissed
2.Costs of the suit awarded to the respondent

Authorities

Legislation

Employment Act, 2007Sections 27, 28(1), 35(1)(b)(c), 41, 43(1), 44, 45, 45(2), 45(4)(b), 47(5), 49(c), 51
Labour Institution ActSection 15(c)
Constitution of Kenya, 2010Article 41

Cases cited (1)

Alphonce Machanga Mwachanya Vs Operation 680 Limited
(2013) eKLR

Jurisdiction invoked: Employment and labour relations jurisdiction of the Employment & Labour Relations Court (Employment Act, 2007)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Anthony Simiyu Wafula v Thuku Mwangi T/A Nairobi Chips Hotel [2016] KEELRC 1687 (KLR)", Case Analysis (2016). Cause No. 209 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1687/eng@2016-02-17

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