Henry Wasike Tumbu v China Jiangxi International (Kenya) Limited [2018] KEELRC 285 (KLR)
The bottom line
#A Kenyan employer that fired a worker without notice or hearing was ordered to pay compensation, because failing to present evidence at trial loses the case.
What this practically means
#Executive summary
#Key legal issues
#Effect of the Respondent's failure to call evidence
The Respondent did not call any witness, so the Claimant's case remained uncontroverted; documents marked for identification but not admitted cannot be used as evidence
The Respondent relied on its Statement of Defence and filed documents without calling a witness. Citing Der Raj Sharma v Reginam and Michael Hausa v the State, the court held that documents not admitted in evidence but only marked for identification are not properly before the court. Pleadings are not evidence; a witness must adopt them. Accordingly the Claimant's unchallenged testimony stood as the evidence in the case.
Whether termination was unfair under Section 45(2) of the Employment Act
The termination was unfair and unjustified because no notice to show cause, disciplinary hearing or reason was given
The Claimant testified he was terminated without notice, without a show cause notice or hearing and with no reason given. The Respondent, having adduced no evidence, failed to prove a valid reason or fair procedure. The effluxion-of-time defence was unsupported by admitted evidence, so Section 45(2) was not satisfied and the termination was unfair.
Quantum of reliefs payable
The court awarded notice pay, one year's leave, house allowance for 14 months and 8 months' salary as compensation, totalling Kshs. 151,008
Using the daily wage of Kshs. 416 (Kshs. 12,480 monthly), the court computed one month's notice, leave for one year (not two as claimed), house allowance at 15% for 14 months, and compensation of 8 months' salary for unfair termination, an award lower than the 12 months sought.
Legal principles established
#- Where a party fails to call any evidence and relies only on pleadings and documents filed, pleadings are not evidence and the claim remains uncontroverted
- A termination is unfair where the employer fails to prove a valid and fair reason and fair procedure under Section 45(2) of the Employment Act
Court orders
#- 1.1 month salary in lieu of notice of Kshs. 12,480
- 2.Unpaid leave for 1 year of Kshs. 12,480
- 3.Unpaid house allowance for 14 months of Kshs. 26,208
- 4.8 months' salary as compensation for unlawful termination of Kshs. 99,840, totalling Kshs. 151,008
- 5.Respondent to pay costs of the suit plus interest at Court rates from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim under Sections 41, 43, 44, 45)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Wasike Tumbu v China Jiangxi International (Kenya) Limited [2018] KEELRC 285 (KLR)", Case Analysis (2018). Cause No. 235 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/285/eng@2018-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.