Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 39 of 2018· [2018] KEELRC 947 (KLR)

Zablon Onkeo Obande v Mtaragon Society [2018] KEELRC 947 (KLR)

Employment and Labour Relations Court of Kenya
9 October 2018
DMD. K. Njagi Marete
781 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan security guard lost a Kshs.458,161 claim because he brought no real evidence — in employment cases, proof beats sympathy every time.

What this practically means

#

Executive summary

#
The claimant, formerly employed by the respondent as a security guard from 15th August 2008 at a monthly salary of Kshs.4,500 until his resignation on 1st April 2017, sued for terminal dues totalling Kshs.458,161.44, comprising leave pay, service pay, underpayment for May 2013 to April 2017, and salary arrears from April 2010 to April 2017. He also sought costs and interest. The employment was said to be oral, and he alleged his salary and leave allowance were never paid. The respondent did not file a response despite service on three occasions, and did not appear. At the hearing on 17th July 2018 the claimant sought determination on the pleadings and documentary evidence. The court framed three issues: sustainability of the claim on the evidence, entitlement to relief, and costs. The court found the claim bare of supporting evidence - the claimant had annexed only witness statements, a demand letter from Kituo Cha Sheria and handwritten notes - and held that while courts should be alert to the predicament of hapless employees, proof remains a critical requirement under sections 107 and 108 of the Evidence Act and section 47(5) of the Employment Act, 2007, which places the burden of proving unfair termination on the employee. The claim was dismissed with each party bearing their own costs.

Key legal issues

#
01

Whether the claim is sustainable on the evidence adduced

Holding

The claim is not sustainable as it is unsupported by any evidence

Reasoning

The claimant relied only on his witness statement, two colleagues' statements, a demand letter from Kituo Cha Sheria and handwritten notes. The court, while sympathetic to the predicament of employees, held that sympathy cannot substitute for proof, and a claim bare of supporting evidence must fail. The respondent's failure to respond despite service did not cure the evidentiary gap.

p. 2
02

Whether the claimant is entitled to the relief sought

Holding

No relief is granted to the claimant

Reasoning

Applying sections 107 and 108 of the Evidence Act and section 47(5) of the Employment Act, 2007, the burden of proving unfair termination or wrongful dismissal rests on the employee. The claimant discharged none of that burden, so the claim for terminal dues, underpayment and salary arrears fails in its entirety and is dismissed.

p. 2

Legal principles established

#
  • In a complaint of unfair termination or wrongful dismissal, the burden of proving that the unfair termination or wrongful dismissal occurred rests on the employee
  • Parties must adduce evidence in support of their respective cases; proof is a critical element and requirement of the law

Court orders

#
  1. 1.The claim is dismissed
  2. 2.Each party to bear their own costs of the claim

Authorities

#

Legislation

  • Evidence Actsections 107 and 108
  • Employment Act, 2007section 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (unfair termination and terminal benefits claim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Zablon Onkeo Obande v Mtaragon Society [2018] KEELRC 947 (KLR)", Case Analysis (2018). Cause No. 39 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/947/eng@2018-10-09

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