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ELRCDismissedCause No. 159 of 2015· [2017] KEELRC 1692 (KLR)

Gilbert Kipngeno Sang v Ukwala Supermarket Limited [2017] KEELRC 1692 (KLR)

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

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Kenya's Employment Court dismissed a worker's unfair dismissal claim because he couldn't prove it, showing employees carry the burden of proof.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a general labourer at its Kericho Branch from 1st January 2007, alleged that he fell sick at the end of 2012, was hospitalised at Tenwek Hospital for twelve months, and was discharged fit to resume work on 19th January 2014. He claimed that upon presenting a hospital clearance letter, the respondent refused to allow him to resume work and instead summarily dismissed him. He sought unpaid salary balances, compensation for wrongful dismissal, costs and interest. The respondent denied the employment relationship (flagging a preliminary objection), denied knowledge of the hospitalisation and clearance letter, and maintained that the claimant was lawfully summarily dismissed for gross misconduct, namely absenteeism for a whole year without permission, relying on Section 44 of the Employment Act, 2007. The respondent relied on Walter Ogal Anuro v Teachers Service Commission on substantive justification and procedural fairness, and on Wareham v Kenya Post Office Bank and Section 107 of the Evidence Act on burden of proof. The court framed three issues: whether termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Applying Section 47(5) of the Employment Act, the court held that the claimant failed to discharge his burden of proving unfair termination, found the termination lawful, and dismissed the claim with costs to the respondent.

Key legal issues

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01

Whether termination was wrongful, unfair and unlawful

Holding

The court found lawful termination; the claimant failed to discharge his burden of proving unfair termination

Reasoning

The claimant bore the burden under Section 47(5) of the Employment Act to prove unfair termination or wrongful dismissal on a balance of probabilities. The respondent pleaded summary dismissal for absenteeism for twelve months, amounting to gross misconduct under Section 44 of the Employment Act. The court found the respondent's case overwhelmed the claimant's and held the termination lawful, answering the first issue.

p. 3
02

Entitlement to relief

Holding

Claimant not entitled to relief sought

Reasoning

Having failed to establish unlawful termination, the claimant's claim for unpaid salary balances and compensation for wrongful dismissal necessarily fails. The court disposed of the second issue by holding the claimant disentitled, then dismissed the entire claim with costs to the respondent.

p. 3

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds for termination rests on the employer (Section 47(5), Employment Act).

Court orders

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

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Section 44(1) / (4)
  • Employment Act, 2007Section 47(5)
  • Evidence Act, Chapter 80 Laws of KenyaSection 107

Cases cited (2)

  • Walter Ogal Anuro Vs Teachers Service Commission
    (2013) eKLR
  • Wareham T/A Af Wareham & 2 Others vs. Kenya Post Office Bank
    (2004) 2 KLR 91
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gilbert Kipngeno Sang v Ukwala Supermarket Limited [2017] KEELRC 1692 (KLR)", Case Analysis (2017). Cause No. 159 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1692/eng@2017-02-06

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