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ELRCStruck OutCause No. 3 of 2015· [2018] KEELRC 118 (KLR)

Fredrick Wanjala Wanyama v South Nyanza Sugar Company Limited [2018] KEELRC 118 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
22 November 2018
MMM. Mbaru
1,445 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent as a Security Manager (Grade SE3) from 16 May 2012, was interdicted on 10 October 2014 on allegations of soliciting bribes, following his interception and report of scrap metal theft at the respondent's premises. He claimed the interdiction and subsequent treatment were unfair: no hearing was accorded, his appeal went unheard, the interdiction exceeded the 28 days prescribed by the staff administration code, he remained on half pay, and his wife was denied medical services. He later received a letter of termination dated 19 January 2016. He sought half salary for the interdiction period, annual increments, medical, house, telephone, extraneous and transport allowances, general damages, reinstatement, costs and interest. The respondent denied that employment had terminated, asserting the claimant remained an employee on interdiction pending a disciplinary case. The respondent filed a defence but, having been absent on the hearing date of 18 October 2018, called no evidence. The court found the claim, filed on 15 January 2015 when the claimant was only interdicted, could not sustain remedies premised on a termination that occurred in January 2016; the application for stay of dismissal and reinstatement was never addressed; the amendment reverted to interdiction and the amended claim was not shown to have been served; and the pleadings and evidence were at variance. Accordingly, the claim was struck out with no orders as to costs.

Key legal issues

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01

Prematurity of the claim relative to the cause of action

Holding

The claim as filed was premature because termination of employment occurred after the suit was filed, and the remedies sought could not be allowed.

Reasoning

The memorandum of claim was filed on 15 January 2015 when the claimant was merely on interdiction. Termination occurred by letter dated 19 January 2016. The claimant applied to amend, but the amendment shifted the claim from dismissal back to interdiction and there was no evidence of service of the amended claim on the respondent. The remedies sought - terminal dues and reinstatement following termination - therefore rested on facts not in existence at filing.

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02

Variance between pleadings and evidence

Holding

The evidence led (termination on 19 January 2016) was at variance with the claims pleaded (interdiction from 10 October 2014), and such variance cannot found the orders sought.

Reasoning

The court noted that the pleadings in the original and amended claims centred on interdiction and half salary, while the claimant testified to termination in January 2016 and sought reinstatement and terminal dues. An application for stay of dismissal and reinstatement filed in January 2016 was never addressed. With the defence never tested by evidence, the court could not grant relief on an unpleaded basis.

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Legal principles established

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  • Remedies in an employment claim must be founded on a cause of action that had arisen at the time of filing; where termination post-dates the filing of the suit and the pleadings were not amended to capture it, the claim is premature and cannot sustain the remedies sought.

Court orders

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  1. 1.The claim herein is struck out
  2. 2.No orders as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act; cause filed as Cause No. 3 of 2015)

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, "Fredrick Wanjala Wanyama v South Nyanza Sugar Company Limited [2018] KEELRC 118 (KLR)", Case Analysis (2018). Cause No. 3 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/118/eng@2018-11-22

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