Mary Kemunto Ontita v Wakenya Pamoja Savings Credit Co-operative Society Limited [2018] KEELRC 949 (KLR)
The bottom line
#The Employment Court dismissed a cashier's unfair termination claim because she couldn't prove it, showing evidence matters in Kenyan employment disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's summary dismissal was wrongful, unfair and unlawful
The termination was lawful; the claimant failed to prove unfair termination, while the respondent adduced documentary evidence of the reasons and process of termination that was not controverted.
The court applied Section 47(5) of the Employment Act on burden of proof: the employee must prove unfair termination while the employer must justify the grounds. The respondent relied on sections 44(4)(c) and (g) and 45(2) as grounds of gross misconduct (fictitious withdrawals) and showed the claimant attended a disciplinary meeting with union representatives on 13th June 2016, satisfying section 41. The claimant's evidence did not controvert the respondent's documentary evidence, which the court found showed her case rested on misrepresentations.
Entitlement to the relief sought (terminal dues, compensation, certificate of service)
The claimant is not entitled to any relief as her claim for unlawful termination failed.
Entitlement to the reliefs claimed - 12 months' compensation, severance pay, unpaid salary and allowances, and a certificate of service - was predicated on a finding of unlawful termination. Having found the termination lawful, the court held the claimant disentitled to all relief and dismissed the claim, with each party bearing its own costs.
Legal principles established
#- In complaints of unfair termination, the employee bears the burden of proving the unfair termination while the employer bears the burden of justifying the grounds for termination (Section 47(5) Employment Act).
- An employee who fails to discharge the burden of proving unlawful termination loses the claim and becomes disentitled to the relief sought.
Court orders
#- 1.Dismissal of the claimant's claim
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (employment dispute; cause filed under its cause jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Kemunto Ontita v Wakenya Pamoja Savings Credit Co-operative Society Limited [2018] KEELRC 949 (KLR)", Case Analysis (2018). Cause No. 52 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/949/eng@2018-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.