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ELRCPartially AllowedCause No. 2257 of 2012· [2018] KEELRC 295 (KLR)

Christine Atieno Opiyo v Michelle Anyango & another [2018] KEELRC 295 (KLR)

Employment and Labour Relations Court
29 November 2018
DMD. K. Njagi MareteMOMaureen Onyango
1,772 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan school was ordered to pay over Kshs.1.1 million to a former teacher because it never filed a defence to her employment claim.

What this practically means

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Executive summary

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This was an undefended employment claim filed on 29th October 2012 by Christine Atieno Opiyo against the proprietors of Small Whales Academy, claiming breach of her employment contract and non-payment of dues upon termination. The claimant, employed as Head Teacher in 2004 and promoted to manager in 2005, alleged withholding of salary, withdrawal of transport services, denial of annual leave, non-payment of house allowance and service pay. She died before the hearing and the claim was prosecuted by her sister as personal representative and her daughter. The respondent filed no defence, called no witnesses and adduced no evidence despite service, but filed written submissions contending that the claimant was a deserter and that her resignation letters were invalid. The court held that written submissions cannot substitute for a defence, since the claimant was entitled to service of a defence to respond to; the submissions amounted to an ambush, mere denial and escapist conduct. Relying on Order 13 Rule 2 of the Civil Procedure Rules and the principle that failure to produce employment records shifts the burden of proof to the employer, the court found the claimant entitled to the relief sought. It awarded salary arrears of Kshs.20,300, transport costs of Kshs.42,000, service pay of Kshs.135,000 (at 15/30 of the salary for nine years), housing allowance of Kshs.396,000 and leave pay of Kshs.540,000, totalling Kshs.1,133,300, with costs to the respondent.

Key legal issues

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01

Whether a claim can succeed where the respondent files no defence and relies only on written submissions

Holding

Yes. Written submissions cannot take the place of a defence; a claimant is entitled to service of a defence to respond, and unrepresented defences by submission are discounted.

Reasoning

The court held that litigation must proceed through agreed procedure so parties can foresee and respond to expectations. The respondent filed no defence, called no witnesses and adduced no evidence despite service. Its late written submissions contesting the resignation letters were mere denial, escapist and an ambush; the claimant should not be held responsible for the respondent's misgivings. The claimant was therefore entitled to the relief sought.

p. 4
02

Entitlement of the deceased claimant's estate/personal representatives to the claimed employment dues

Holding

The claim, pursued by the claimant's sister as personal representative and the claimant's daughter, succeeded on the quantified heads of salary arrears, transport, service pay, housing allowance and leave pay.

Reasoning

The claimant died in April 2010 (evidently after filing the claim per the testimony) and her claim was prosecuted by her sister and daughter. The respondent filed no defence to contradict the claim, and its submissions were inadmissible in place of a defence. The court awarded the particularised dues but reduced service pay to the statutory formula of 15/30 x 30,000 x 9, totalling Kshs.1,133,300.00.

p. 4

Legal principles established

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  • Written submissions cannot substitute for a defence where none has been filed; a respondent who files no defence or witness statement cannot ambush the claimant through submissions.
  • The Civil Procedure Rules 2010, including Order 13 Rule 2 on judgment on admission, apply in the Employment and Labour Relations Court where there is a lacuna.
  • Where an employer fails to produce employment records, the burden of proof shifts from the claimant to the respondent under sections 10 and 74 of the Employment Act.

Court orders

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  1. 1.Arrears of unpaid salary of Kshs.20,300.00
  2. 2.Commuter/transport costs of Kshs.42,000.00
  3. 3.Service pay of Kshs.135,000.00 (15/30 x 30,000 x 9)
  4. 4.Housing/rent at 50% of actual rent of Kshs.11,000.00, Kshs.396,000.00
  5. 5.Leave pay of Kshs.540,000.00
  6. 6.Total award of Kshs.1,133,300.00 against the respondent
  7. 7.Costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Civil Procedure ActOrder 13, Rule 2
  • Employment Actsections 10, 10(7), 74
  • Industrial Court (Procedure) Rules 2010general
  • Industrial Court Act 2011general
  • Evidence Actgeneral

Cases cited (2)

  • Eunice Wambugu Gachogu vs. Hon. Charles Nyamai T/A My Hotels Palms
    Industrial Cause No. 1214 of 2012 (unreported)
  • John Nyonje Eliuaba v Lubao Jaggery Actory Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Industrial Court Act 2011 / Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Christine Atieno Opiyo v Michelle Anyango & another [2018] KEELRC 295 (KLR)", Case Analysis (2018). Cause No. 2257 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/295/eng@2018-12-03

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