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ELRCDismissedCause No. 1569 of 2014· [2018] KEELRC 426 (KLR)

Anyton Mbithi Willy v Choka Supplies Limited [2018] KEELRC 426 (KLR)

Industrial Court of Kenya
3 December 2018
DMD. K. Njagi MareteMOMaureen Onyango
1,164 words in judgment
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The bottom line

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A Kenyan employment claim failed because the worker could not prove he was actually terminated — documents showing you were employed are not proof you were unlawfully dismissed.

What this practically means

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Executive summary

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The claimant, Anyton Mbithi Willy, sued Choka Supplies Limited by a Memorandum of Claim dated 8th September 2014, alleging constructive and unlawful dismissal on 22nd July 2014 without notice and with abusive language. He sought salary for July 2014 (Kshs.15,000) with interest, payment for six months of accumulated leave, and costs. The respondent denied the claim, asserting the claimant voluntarily absconded duty for the whole of July 2014, that he was fully paid per statutory provisions, and filed a counter-claim for special damages of Kshs.15,000 and general damages for breach of contract occasioned by his failure to give notice. Upon the claimant's proposal, the court determined the matter on written submissions. The court framed five issues: whether there was termination; whether it was wrongful, unfair and unlawful; entitlement to relief; the sustainability of the counter-claim; and costs. On the evidence, the claimant failed to produce the service contract of 1st January 2014 referred to in his witness statement. The demand letter, NSSF and NHIF records and deposit vouchers established an employment relationship but not unlawful termination. The court found the claimant fell short of proving his case on a balance of probabilities and found no termination, with issues two and three falling away. The counter-claim also failed: the respondent did not prove absconding, and the claimant's failure of proof did not establish it. The claim and counter-claim were both dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether termination of the claimant's employment was proved

Holding

There was no proved termination; the claimant failed to adduce the service contract he relied on and the annextures only proved an employment relationship, not unlawful or constructive dismissal.

Reasoning

The claimant's witness statement referred to a service contract dated 1st January 2014 which was never produced in evidence. The demand letter, NSSF statement, NHIF summary and deposit vouchers established the existence of employment but did not evidence constructive or unlawful termination. The claimant therefore fell short of discharging the burden of proof on a balance of probabilities, and the court found there was no termination of employment by the respondent.

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02

Whether the counter-claim for damages arising from alleged absconding was sustainable

Holding

The counter-claim failed because the respondent did not prove that the claimant absconded duty; it remained a mere possible allegation.

Reasoning

The court held that the respondent's counter-claim depended on proving that the claimant absconded duty for the whole of July 2014. That was not proved and merely remained a possible allegation. The court emphasised that the claimant's failure to prove unlawful termination did not automatically establish the respondent's case of absconding, since each party's case stands or falls on its own proof on a balance of probabilities. The counter-claim therefore failed alongside the claim.

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Legal principles established

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  • A party alleging wrongful or unfair termination bears the burden of proving it on a balance of probabilities; mere annextures establishing an employment relationship are not proof of unlawful termination
  • Failure by a claimant to prove his case does not, of itself, prove the respondent's counter-claim; each side must prove its own case on a balance of probabilities

Court orders

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  1. 1.The claim is dismissed
  2. 2.The counter-claim is dismissed
  3. 3.Each party to bear their own costs of the claim and counter-claim
Jurisdiction invoked
Dispute referred to the Industrial Court of Kenya under its employment and labour relations jurisdiction (Employment Act, 2007 pleaded as governing the terms of service)

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, "Anyton Mbithi Willy v Choka Supplies Limited [2018] KEELRC 426 (KLR)", Case Analysis (2018). Cause No. 1569 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/426/eng@2018-12-03

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