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ELRCDismissedCause not stated in judgment (filed 8th October 2015 by Memorandum of Claim dated 7th October 2015)· [2018] KEELRC 997 (KLR)

Emmanuel Kayala Mate v Wevarsity Sacco Society Limited [2018] KEELRC 997 (KLR)

Employment and Labour Relations Court
4 October 2018
1,687 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed both a SACCO employee's unfair termination claim and the SACCO's counterclaim because neither side proved their case.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent SACCO, sued seeking a declaration that his employment was wrongfully terminated, general and exemplary damages, arrear salary from July 2014 to January 2015, full salary from February 2015, service pay, leave, overtime and pay in lieu of notice, plus costs and interest. The Respondent alleged that the Claimant and an accomplice defrauded it of Kshs.3,149,309 through irregular overdrafts, fictitious deposits and misappropriation; that the Claimant admitted the offence before the Board and committed in writing to repay Kshs.1,307,880.50; that he failed to attend a disciplinary hearing; and that he resigned by a letter backdated to 2nd January 2015 after obtaining employment with Kibabii University while on suspension at half pay. The Respondent counterclaimed for the Kshs.1,307,880.50. The Claimant relied only on pleadings and submissions; the Respondent called one witness. The court framed two issues: whether the employment was terminated or the Claimant voluntarily resigned, and entitlement to reliefs. Applying sections 107 and 108 of the Evidence Act, the court held the Claimant failed to discharge the burden of proof, found he voluntarily resigned, and followed Moses Kiplagat Changwony v Tana River Development Authority on constructive dismissal. All monetary claims failed for want of proof, and the counterclaim also failed because the Respondent did not prove the loss was solely attributable to the Claimant or that he personally benefited. Both claim and counterclaim were dismissed, with each party bearing their own costs; the Respondent was directed to issue a certificate of service within 30 days.

Key legal issues

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01

Whether employment was terminated or the claimant voluntarily resigned

Holding

The claimant voluntarily resigned; the claim for unfair and unlawful termination fails

Reasoning

The claimant wrote a resignation letter dated 2nd January 2015, admitted in writing a cash shortage of Kshs.1,307,880.50, failed to attend a duly constituted disciplinary hearing, and took up employment with Kibabii University College while under suspension. The court found the respondent's documentary evidence credible and the claimant's constructive dismissal allegations bare, so the burden of proof was not discharged.

p. 3
02

Entitlement to reliefs (salary, service pay, leave, overtime, notice)

Holding

All monetary reliefs dismissed for want of proof

Reasoning

The claimant tendered no evidence of arrear salary or other dues. The respondent was justified in paying half salary during suspension; refund would have followed only if the claimant had been cleared, but he resigned before conclusion of the disciplinary process. Leave, service gratuity and overtime claims were likewise unproved.

p. 3
03

Respondent's counter claim of Kshs.1,307,880.50

Holding

Counter claim dismissed

Reasoning

The claimant's letter committing to repay was at best an admission of poor work performance, not proof of personal benefit. The court accepted that the respondent lost funds through negligence by the claimant and other staff, but the respondent did not prove the loss was solely attributable to the claimant or that he personally benefited.

p. 3

Legal principles established

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  • An employee bears the onus of proving all aspects of the case on a balance of probabilities under sections 107 and 108 of the Evidence Act
  • An employee who resigns before a disciplinary process concludes and is not cleared is not entitled to refund of salary withheld during suspension

Court orders

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  1. 1.The entire suit is dismissed
  2. 2.The counter claim is dismissed
  3. 3.Each party to bear their own costs of the suit
  4. 4.The Respondent to provide the Claimant with a certificate of service within 30 days of the judgment

Authorities

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Legislation

  • Evidence Actsections 107 and 108

Cases cited (1)

  • Moses Kiplagat Changwony v Tana River Development Authority
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (statutory basis not expressly cited in the judgment)

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, "Emmanuel Kayala Mate v Wevarsity Sacco Society Limited [2018] KEELRC 997 (KLR)", Case Analysis (2018). Cause not stated in judgment (filed 8th October 2015 by Memorandum of Claim dated 7th October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/997/eng@2018-10-04

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