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ELRCDismissedCause No. 2498 of 2012· [2018] KEELRC 355 (KLR)

Jonathan Patrick Ondieki Nyangau v Nairobi City Water & Sewerage Co Limited [2018] KEELRC 355 (KLR)

Employment and Labour Relations Court of Kenya
3 December 2018
DMD. K. Njagi MareteMOMaureen Onyango
1,700 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an employee's claim of forced resignation because he couldn't prove it — evidence matters more than allegations.

What this practically means

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Executive summary

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The claimant, an accountant who had worked for Nairobi City Council from 1972 and was transferred to the respondent's service in 2004, alleged that on 4th October 2005 he was coerced by the respondent's Managing Director into resigning while he was remanded at Bomet Police Station on criminal charges that were later withdrawn. He sought a declaration that his resignation was wrongful, reinstatement, or alternatively compensation, plus terminal benefits, costs and interest. The respondent denied coercion, asserting the claimant voluntarily resigned citing health reasons, was paid his terminal dues, and that the suit was time barred under section 90 of the Employment Act. The respondent also explained a letter headed 'Summary Dismissal' of 7th May 2012 as a typographical error, its substance being a mere refusal to reinstate. The court framed four issues, chiefly whether the resignation was coerced. Relying on sections 107 and 109 of the Evidence Act, the court held that the claimant bore the burden of proving coercion and failed to adduce evidence in support, finding no pressure or coercion in the early retirement. The authorities cited by the claimant (Peter Mureithi Ngata and Silas Rukungu Karanja) were relied on by him but not adopted by the court, which did not file written submissions from the respondent. The claim was dismissed with each party bearing their own costs. Judgment was signed by D.K. Njagi Marete on 29th November 2018 and delivered by Maureen Onyango, Principal Judge, on 3rd December 2018.

Key legal issues

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01

Whether the claimant's resignation was coerced by the respondent

Holding

No coercion was established; the claimant failed to discharge the burden of proving that his resignation of 4th October 2005 was forced

Reasoning

The court held that a claimant alleging forced resignation bears the burden of proof under sections 107 and 109 of the Evidence Act. The claimant adduced no evidence in support of the coercion claim beyond pleadings. The court found the allegation unusual and unnatural, noting the claimant was an experienced officer who had served from 1972 to 2005, and found no pressure or coercion in the early retirement.

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02

Whether the claimant is entitled to the relief sought

Holding

No; having failed to prove coercion, the claims for declaration, reinstatement, compensation and terminal benefits fell away

Reasoning

Since the foundational issue of coercion was determined against the claimant, the entitlement to relief could not arise. The court found that issues 2 and 3 were not necessary for determination once no coercion was found, and the entire claim was dismissed.

p. 3
03

Limitation under section 90 of the Employment Act

Holding

The respondent pleaded that the suit was time barred under section 90 of the Employment Act, but the court did not determine this issue, disposing of the claim on want of proof instead

Reasoning

The respondent pleaded that employment ceased on 4th October 2005 upon voluntary resignation and that the suit was therefore time barred. The court framed no limitation issue for determination and did not rule on it; the claim was dismissed on evidentiary grounds.

p. 2

Legal principles established

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  • He who alleges must prove; the burden lies on the party asserting facts supporting a legal right or liability

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party bears their own costs of the cause

Authorities

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Legislation

  • Evidence Actsections 107 and 109
  • Employment Actsection 90
  • Criminal Procedure Codesection 87A

Cases cited (2)

  • Peter Mureithi Ngata vs. The Hon. Attorney General
    ELRC Cause No. 716 of 2011
  • Silas Rukungu Karanja vs. Teachers Service Commission
    Industrial Cause No. 567 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act CAP. 11 Laws of Kenya referenced; the claim is an employment cause filed under the court's originating jurisdiction)

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, "Jonathan Patrick Ondieki Nyangau v Nairobi City Water & Sewerage Co Limited [2018] KEELRC 355 (KLR)", Case Analysis (2018). Cause No. 2498 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/355/eng@2018-12-03

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