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ELRCDismissedCause No. 111 of 2016· [2017] KEELRC 1859 (KLR)

Naftali Ayot Okanja v Rai Plywoods Kenya Limited [2017] KEELRC 1859 (KLR)

Employment and Labour Relations Court of Kenya
31 January 2017
DMD. K. Njagi Marete
2,317 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 failed to prove his case, confirming that evidence and employer records win these disputes.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a General Worker on or about 6th March 2008 and earning Kshs. 21,000/- at the material time, sued claiming that his services were summarily dismissed on 10th July 2013 on allegations of abscondment without notice, without a valid reason and without procedural compliance with Sections 35, 36, 41, 43, 44 and 45 of the Employment Act, 2007. He sought a declaration of unfair termination, notice pay, pending salary for July 2013, pro-rata leave dues, twelve months' gross pay as compensation (totalling Kshs. 293,326/-), a certificate of service, costs and interest. The respondent denied employing the claimant as pleaded, asserted a career littered with warnings and suspensions, and justified the dismissal as a lawful summary dismissal for gross misconduct including abscondment, smoking at the workplace and possession of suspected stolen overalls. The parties agreed to determination by written submissions, upon which the court framed three issues: lawfulness of the termination, entitlement to relief, and costs. The court found the respondent's case overwhelming, holding that the termination was lawful and that the claimant, who bore the burden of proving unfair termination under Section 47(5), had failed to displace the evidence of gross misconduct. The claim was accordingly dismissed in its entirety with costs to the respondent. All heads of relief, including the certificate of service, were refused.

Key legal issues

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01

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

Holding

The termination was lawful; the respondent proved gross misconduct and the claimant failed to discharge his burden under Section 47(5)

Reasoning

The court considered the claimant's submissions on Sections 35, 41, 43, 44(4) and 45 of the Employment Act and the authorities cited, against the respondent's evidence of abscondment and a history of warnings and suspensions. The court found the respondent's case overwhelming, concluding that the dismissal was for gross misconduct and in tandem with justice and equity.

p. 6
02

Whether the claimant is entitled to the relief sought

Holding

No relief is due since the claimant lost on the unlawful termination issue

Reasoning

Having found the termination lawful, the court held that the claimant could not be entitled to notice pay, pending salary, leave dues, compensation or a certificate of service. The entire claim was therefore dismissed with costs to the respondent.

p. 6

Legal principles established

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  • For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness (as stated in Walter Ogal Anuro v Teachers Service Commission and adopted in this judgment)
  • Burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer, per Section 47(5) of the 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 ActSection 8
  • Employment ActSection 9(2)
  • Employment ActSection 28(1)
  • Employment ActSection 35(1)(b)(c)
  • Employment ActSection 36
  • Employment ActSection 41(1)
  • Employment ActSection 43
  • Employment ActSection 44(4)
  • Employment ActSection 45
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 45(4)(b)
  • Employment ActSection 47(5)
  • Employment ActSection 49(c)
  • Employment ActSection 51
  • Labour Institution ActSection 15(c)

Cases cited (4)

  • Walter Ogal Anuro Vs Teachers Service Commission
    (2013) eKLR
  • Kenya Petroleum Oil Workers Union v Kenya Petroleum Refineries Ltd
    (2013) eKLR
  • Kabengi Mugo V Syngenta East Africa Limited
    Industrial Cause Number 1476 of 2011
  • Donald Odeke V Fidelity Security Limited
    Industrial Cause Number 1998 of 2011; (2011) LLR 277
Jurisdiction invoked
Employment and Labour Relations Court established under Article 162(2) of the Constitution (as reflected in the cause before the Employment and Labour Relations Court; the judgment itself does not expressly cite a jurisdictional provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Naftali Ayot Okanja v Rai Plywoods Kenya Limited [2017] KEELRC 1859 (KLR)", Case Analysis (2017). Cause No. 111 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1859/eng@2017-01-31

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