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ELRCDismissedCause No. 115 of 2016· [2017] KEELRC 1666 (KLR)

Richard Barasa Wepukhulu v Board of Management, Chenjeni Primary School [2017] KEELRC 1666 (KLR)

Employment and Labour Relations Court of Kenya
21 February 2017
DMD. K. Njagi Marete
1,359 words in judgment
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The bottom line

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The Employment Court dismissed a guard's unfair termination claim because he relied only on pleadings and gave no evidence in court.

What this practically means

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Executive summary

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The claimant, Richard Barasa Wepukhulu, sued the Board of Management of Chenjeni Primary School alleging that he was orally employed on 2nd January 2001 as a Security Guard at Kshs 1,000 per month, below the statutory minimum, and that his employment was wrongfully terminated on 18th March 2015 in contravention of Sections 41 and 42 of the Employment Act. He sought a declaration that the termination was null and void, compensation of Kshs 1,322,721.60, lost income, interest, a certificate of service under Section 51, and costs. The respondent denied the claim, asserting the claimant worked on contract, absconded duty after being asked to record a police statement over lost KPLC cables, and that the County Labour Officer had found for the respondent. It also foreshadowed preliminary objections on jurisdiction. The court framed four issues, the first being whether there was a termination at all. Noting that the matter was not heard inter partes - the respondent did not appear at the hearing and its advocates had ceased acting - and that service of the hearing notice was not evidenced, the court observed the claimant chose to rely only on his pleadings without testifying. It found numerous disconnected links in the alleged employment, held the respondent's plea of no termination the more probable scenario, and concluded there was no termination of employment. The remaining issues lapsed, and on 21st February 2017 the court dismissed the claim with costs to the respondent.

Key legal issues

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01

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

Holding

The court found there was no termination of employment; the claimant did not prove the employment relationship or its termination, and the respondent's account of absence of termination was more probable.

Reasoning

The matter was not heard inter partes; the respondent did not actively participate and its counsel had filed a notice of cessation of acting. Service of the hearing notice on the respondent was not evidenced. The claimant relied only on his pleadings without giving evidence, leaving numerous disconnected links in the employment engagement. The respondent pleaded a case of no termination, which the court found the more probable scenario.

p. 3
02

Whether the claimant was entitled to the relief sought

Holding

The remaining issues lapsed with the finding that there was no termination, and the claim was dismissed with costs.

Reasoning

Having found no termination of employment, the questions of wrongful, unfair and unlawful termination and entitlement to compensation under Sections 41, 42, 49 and 51 of the Employment Act could not arise. The court dismissed the claim and awarded costs to the respondent, answering all issues for determination.

p. 3

Legal principles established

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  • A claimant who fails to adduce evidence and relies only on pleadings, where service of hearing notice is not proved, fails to discharge the burden of proving employment and its termination.

Court orders

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  1. 1.The claim is dismissed with costs to the respondent.

Authorities

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Legislation

  • Employment ActSection 20
  • Employment ActSection 27(2)
  • Employment ActSection 49(1)(c)
  • Employment ActSections 41 and 42
  • Employment ActSection 51
  • ILO Convention No. 158 concerning termination of employment at the initiative of the employer
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, No. 11 of 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, "Richard Barasa Wepukhulu v Board of Management, Chenjeni Primary School [2017] KEELRC 1666 (KLR)", Case Analysis (2017). Cause No. 115 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1666/eng@2017-02-21

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