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ELRCPartially AllowedCause No. 87 of 2014· [2018] KEELRC 961 (KLR)

Patrick Osano Ogeto v IVRCL Limited [2018] KEELRC 961 (KLR)

Employment and Labour Relations Court of Kenya
2 October 2018
671 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 awarded a driver Kshs 289,666 for unfair dismissal because his employer never showed up to prove its defence.

What this practically means

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Executive summary

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The Claimant, a driver employed by the Respondent on 4 January 2013 at a basic salary of Kshs 20,000 per month, sued for unfair and unlawful termination of employment on 21 November 2013 and for unpaid terminal benefits. He sought three months' salary in lieu of notice, pro-rata leave, house allowance for 11 months, service gratuity, 12 months' salary as compensation for unfair termination and a certificate of service, totaling Kshs 371,331. The Respondent, though served and represented, filed a defence but called no witness, leaving the Claimant's case uncontroverted. The court, invoking authority on the distinction between exhibits and documents merely marked for identification, held that the Respondent's defence remained a pleading with no evidential value. The court found the employment relationship proved, that there was no disciplinary hearing and no proof of valid reasons for dismissal, and declared the termination unfair and unjustified. It awarded the remedies as prayed in modified form: three months' notice pay (Kshs 60,000), house allowance (Kshs 33,000), pro-rata leave (Kshs 18,333), service pay (Kshs 18,333) and eight months' salary as compensation (Kshs 160,000), totaling Kshs 289,666, plus a certificate of service. The Respondent was ordered to pay the costs of the claim with interest at court rates from the date of judgment. Judgment was delivered by Hellen S. Wasilwa J on 2 October 2018.

Key legal issues

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01

Effect of respondent's failure to call evidence

Holding

A defence not supported by testimony remains a pleading and carries no evidential weight; the claimant's uncontroverted evidence stands

Reasoning

The Respondent entered appearance and filed a defence but failed to call any witness. Relying on the Court of Appeal's exposition that documents marked for identification but not admitted in evidence cannot be used as evidence, the court held that the defence amounted only to pleadings. The Claimant's evidence therefore remained uncontroverted and was sufficient to prove the employment relationship and the circumstances of termination.

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02

Whether termination was unfair and unjustified

Holding

Termination without notice, without a disciplinary hearing and without proof of valid reasons was unfair and unjustified

Reasoning

The Claimant proved the employment relationship through his oral evidence and documents including the appointment letter. The court found no indication of how the relationship was determined, no disciplinary hearing was convened, and there was no proof of valid reasons warranting dismissal. In the absence of any controverting evidence from the Respondent, the termination was held to be unfair and unjustified under the Employment Act standards of procedural and substantive fairness.

p. 1

Legal principles established

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  • Where a party fails to call a witness, its defence remains a pleading without evidential value, and uncontroverted evidence may be relied upon

Court orders

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  1. 1.Payment of 3 months salary in lieu of notice (Kshs 60,000)
  2. 2.House allowance at 15% of Kshs 20,000 for 11 months (Kshs 33,000)
  3. 3.Pro-rata leave for 11 months (Kshs 18,333)
  4. 4.Service pay for 11 months (Kshs 18,333)
  5. 5.Compensation of 8 months salary for unlawful termination (Kshs 160,000), total Kshs 289,666
  6. 6.Issuance of a Certificate of Service
  7. 7.Respondent to pay costs of the claim plus interest at court rates from the date of judgment

Authorities

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Cases cited (2)

  • Der Raj Sharma vs Reginam
    (1953) 19 EACA 310
  • Michael Hausa vs the State
    (1994) 7-8 SCANJ 144
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over unfair termination and terminal benefits (Cause No. 87 of 2014)

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, "Patrick Osano Ogeto v IVRCL Limited [2018] KEELRC 961 (KLR)", Case Analysis (2018). Cause No. 87 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/961/eng@2018-10-02

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