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ELRCPartially AllowedMemorandum of Claim dated 7th July 2014 (ELRC Cause)· [2018] KEELRC 259 (KLR)

Abdalla Sudi Abdalla v Borderless Tracking Limited [2018] KEELRC 259 (KLR)

Employment and Labour Relations Court
20 December 2018
2,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a former manager only the unpaid salary the employer admitted owed, rejecting allowance claims he could not prove with evidence.

What this practically means

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Executive summary

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The Claimant, Abdalla Sudi Abdalla, sued Borderless Tracking Limited for Kshs. 542,500/= in unpaid salary and allowances, alleging he was employed as General Manager from 5th September 2013, never issued a written contract, and was asked to leave on 9th December 2013 without reasons. He claimed November and December 2013 salary, airtime refund, and, since a conditional concession to forgo them lapsed, car allowance, accommodation and travel expenses. The Respondent admitted the employment at a salary of Kshs. 160,000/= per month but asserted the Claimant was on probation, underperformed, and left voluntarily; it acknowledged it had no payslips proving payment of November and December 2013 salaries, offering only November salary and 9 days of December salary at Kshs. 160,000/= per month, less tax. The Claimant argued constructive dismissal citing authorities including the Leah Shighadi Sinoya and Jeremiah Ochieng’ Ponde cases, and faulted the Respondent's failure to issue a contract under Sections 9 and 10 of the Employment Act. The court found the employment relationship undisputed but held that the Claimant produced no evidence of his entitlement to the higher salary or the allowances claimed, and no receipts for accommodation or airtime. Judgment was entered only to the extent of the Respondent's admission: Kshs. 208,000/= less statutory deductions, plus costs and interest at court rates from the date of filing suit. The claims for allowances and the higher salary figure failed for want of proof.

Key legal issues

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01

Whether the Claimant was unfairly terminated or resigned voluntarily

Holding

The court did not make a definitive finding on the mode of exit; it awarded only what the Respondent admitted, sidestepping the termination versus resignation dispute.

Reasoning

The Claimant argued constructive dismissal and unlawful termination citing Section 41 of the Employment Act and relied on authorities on constructive dismissal. The Respondent maintained the Claimant wilfully resigned after poor performance. The court, however, noted both parties' positions and limited relief to the admitted salary arrears, finding that the Claimant produced no evidence of his claimed entitlements beyond the admission.

p. 4
02

Whether the Claimant was entitled to car, accommodation and travel allowances

Holding

Rejected - no evidence of entitlement to the allowances claimed.

Reasoning

The burden lay on the Claimant to prove the alleged allowances and reimbursement claims. He had no appointment letter and produced no receipts for accommodation or airtime. The Respondent's CEO denied any agreement on allowances. Under Sections 107 and 109 of the Evidence Act, he who alleges must prove, and the Claimant's unsubstantiated claims could not stand.

p. 4

Legal principles established

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  • A party's admission of liability binds the court and judgment may be entered to the extent of that admission.

Court orders

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  1. 1.Judgment for the Claimant to the extent of the Respondent's admission
  2. 2.Respondent to pay the Claimant Kshs. 208,000/= less statutory deductions
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at court rates from the date of filing the suit

Authorities

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Legislation

  • Employment Act 2007Section 9
  • Employment Act 2007Section 10(2)(h)
  • Employment Act 2007Section 41
  • Employment Act 2007Section 44
  • Employment Act 2007Section 49
  • Employment and Labour Relations Court ActSection 12
  • Evidence Act, Cap 80Sections 107 and 109

Cases cited (5)

  • Jeremiah Ochieng’ Ponde & 3 others v Borderless Tracking Systems Limited
    [2016] eKLR
  • Leah Shighadi Sinoya v Avtech Systems Limited
    [2017] eKLR
  • Coca Cola East & Central Africa Limited vs Maria Kagai Liganga
    [2015] eKLR
  • Osman Eggae Egaal versus John Philip Tilley & Others
    Petition No.90 of 2012
  • David Potter versus New Brunswick Legal Aid Services Commission
    2015 SCC 10
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12; Employment Act 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, "Abdalla Sudi Abdalla v Borderless Tracking Limited [2018] KEELRC 259 (KLR)", Case Analysis (2018). Memorandum of Claim dated 7th July 2014 (ELRC Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/259/eng@2018-12-20

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