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ELRCPartially AllowedCause No. 235 of 2014· [2018] KEELRC 285 (KLR)

Henry Wasike Tumbu v China Jiangxi International (Kenya) Limited [2018] KEELRC 285 (KLR)

Employment and Labour Relations Court
13 December 2018
HWHellen S. Wasilwa
2,428 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent from July 2012 as a general labourer/builder at Kshs. 416 per day, claimed that his employment was wrongfully, unlawfully and maliciously terminated on 30th September 2013 without notice, reasons, a show cause notice or a hearing. He sought one month's pay in lieu of notice, unpaid leave, service pay, house allowance, twelve months' compensation for unfair termination, a declaration that the termination was unlawful, costs and interest. The Respondent contended that the claimant was a casual labourer on a fixed-term project contract which ended automatically on completion of the ICPAK building project, that internal memos of 8th August and 2nd September 2013 notified employees of the lay-off, and that all dues were paid at termination. The Respondent called no witness, relying instead on its pleadings and documents on file. The court held that pleadings are not evidence, and documents not admitted but only marked for identification cannot be used; the Claimant's case therefore remained uncontroverted. Finding no notice to show cause, hearing or reason proved, the court held the termination unfair and unjustified under Section 45(2) of the Employment Act. Judgment was entered for Kshs. 151,008, comprising one month's notice pay, one year's unpaid leave, house allowance for 14 months at 15%, and eight months' salary as compensation, together with costs and interest at court rates. The declaration sought was not granted and the award fell short of several heads claimed.

Key legal issues

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01

Effect of the Respondent's failure to call evidence

Holding

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

Reasoning

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.

p. 3
02

Whether termination was unfair under Section 45(2) of the Employment Act

Holding

The termination was unfair and unjustified because no notice to show cause, disciplinary hearing or reason was given

Reasoning

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.

p. 3
03

Quantum of reliefs payable

Holding

The court awarded notice pay, one year's leave, house allowance for 14 months and 8 months' salary as compensation, totalling Kshs. 151,008

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.1 month salary in lieu of notice of Kshs. 12,480
  2. 2.Unpaid leave for 1 year of Kshs. 12,480
  3. 3.Unpaid house allowance for 14 months of Kshs. 26,208
  4. 4.8 months' salary as compensation for unlawful termination of Kshs. 99,840, totalling Kshs. 151,008
  5. 5.Respondent to pay costs of the suit plus interest at Court rates from the date of the judgment

Authorities

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Legislation

  • Employment Act, 2007Sections 18(5), 31, 35(5), 41(1), 43(1), 44(4), 45(2), 45(4) and (5), 78
  • Constitution of Kenya, 2010Article 47

Cases cited (7)

  • Bernard Ngugi v G4S Security Services Kenya Limited
    (2013) eKLR
  • Samuel Chacha Mwita vs Kenya Medical Research Institute
    (2014) eKLR
  • Rajab Barasa & 4 Others v Kenya Meat Commission
    (2016) eKLR
  • Kenya Ports Authority v Edward Otieno
    Civil Appeal No 120 of 1997 (Unreported)
  • Walter Musi Anyanje v Hilton Inetrnational Kenya Ltd & Another
    (2008) eKLR
  • Der Raj Sharma vs Reginam
    (1953) 19 EACA 310
  • Michael Hausa vs the State
    (1994) 7-8 SCANJ 144
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim under Sections 41, 43, 44, 45)

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, "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.