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ELRCPartially AllowedCause No. 244 of 2015 (consolidated with Cause Nos. 245 of 2015, 246 of 2015 and 248 of 2015)· [2018] KEELRC 878 (KLR)

Kennedy Okuku v Adok Timo Micro Finance Company [2018] KEELRC 878 (KLR)

Employment and Labour Relations Court
18 October 2018
MNMathews N. Nduma
742 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Four Kenyan employees won unpaid salary and notice pay with interest, but lost their constructive dismissal claims because they couldn't prove their employer forced them out.

What this practically means

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Executive summary

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Four employment causes (Nos. 244, 245, 246 and 248 of 2015) were consolidated with Cause No. 244 as the lead file. The Claimants, former employees of the Respondent engaged between 2007 as a microfinance officer, credit officer, community mobiliser and microfinance officer respectively, alleged non-payment of salary for between four and six months and that they stopped working in 2012 due to financial hardship inflicted by the Respondent. Service was effected on the Respondent on 13th July 2015 by a licensed process server, but the Respondent neither entered appearance nor filed statements of defence. The consolidated suits therefore proceeded to formal proof on 3rd July 2018, with two Claimants (Joe Kiduma and Kennedy Okuku) testifying on behalf of all; their testimony was unrebutted. The court held that the claims for terminal benefits were proved on a balance of probabilities, awarding each of the 1st, 2nd and 3rd Claimants one month's salary in lieu of notice and six months' unpaid arrear salary, and the 4th Claimant four months' arrear salary plus one month's salary in lieu of notice, entering judgment in the sums of Kshs.108,000, Kshs.78,000, Kshs.102,000 and Kshs.68,000 respectively, with interest at court rates from the date of filing suit until payment in full. However, the court found the Respondent had gone under due to financial difficulties and had not terminated the Claimants' employment; redundancy was not pleaded and no severance or service gratuity was claimed. Applying Sections 107, 108 and 109 on burden of proof, the court dismissed the claims for constructive dismissal. Costs of the four consolidated suits were awarded to the Claimants against the Respondent.

Key legal issues

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01

Whether terminal benefits were proved in an undefended suit

Holding

The claims for terminal benefits were undefended and were proved on a balance of probabilities; each of the 1st, 2nd and 3rd Claimants awarded one month salary in lieu of notice and six months arrear salary, and the 4th Claimant four months arrear salary plus one month in lieu of notice

Reasoning

The suit proceeded to formal proof after the Respondent failed to enter appearance or file defences. Testimony of CW1 and CW2 on behalf of all Claimants was unrebutted. The court found the brief uncontested facts of employment dates, salaries, and unpaid wages sufficient to establish the terminal benefits claims and awarded notice pay plus arrear salary with interest at court rates.

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02

Whether the Claimants were constructively dismissed and entitled to compensation

Holding

The claims for constructive dismissal were dismissed; the Claimants failed to prove constructive dismissal

Reasoning

The court found the Respondent went under due to financial difficulties and did not terminate the Claimants' employment; they simply left due to financial hardship. It would have been a case of redundancy but that was not pleaded, no severance or service gratuity was claimed, and no intentional or negligent conduct by the Respondent was proved. The evidentiary burden under Sections 107, 108 and 109 of the Employment Act was not discharged.

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Legal principles established

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  • Section 107, 108 and 109 oblige a party who wishes a set of facts to be found in their favour to prove the same
  • Claims for constructive dismissal require proof of intentional or negligent conduct by the employer

Court orders

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  1. 1.Judgment entered in favour of the Claimants as against the Respondent: Kennedy Okuku Kshs.108,000; Joe Kiduma Kshs.78,000; Tom Oyugi Kshs.102,000; Joshua Ogallo Kshs.68,000
  2. 2.The awards to be paid with interest at court rates from date of filing suit till payment in full
  3. 3.Respondent to pay costs in respect of the four (4) consolidated suits
  4. 4.The claims for constructive dismissal dismissed as not proved

Authorities

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Legislation

  • Employment Act (implied by sections cited)Sections 107, 108, 109
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment causes (statements of claim in consolidated causes)

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, "Kennedy Okuku v Adok Timo Micro Finance Company [2018] KEELRC 878 (KLR)", Case Analysis (2018). Cause No. 244 of 2015 (consolidated with Cause Nos. 245 of 2015, 246 of 2015 and 248 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/878/eng@2018-10-18

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