Peninnah Kathikwa Mwendwa v Re-Suns Spices Limited [2018] KEELRC 1086 (KLR)

Employment and Labour Relations Court

28 September 2018

NMNzioki wa Makau

1,659 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~7 min to read original · ~4 min brief

The bottom line

A Kenyan court dismissed an unfair termination claim because the employee couldn't prove her case, though she kept a Kshs. 28,795 settlement payment.

What this practically means

Executive summary

The Claimant sued the Respondent for unfair, unlawful and wrongful termination of her services as a general labourer employed on 12th June 2013 at a daily wage of Kshs. 475/-. She alleged she was given maternity leave in February 2015 and, upon seeking to return, was told she could not resume work, without any reason or notice to show cause. She sought terminal dues, statutory underpayments, notice pay, leave pay, service pay, compensation, punitive damages, a certificate of service, costs and interest. The Respondent denied terminating her, asserting she was a casual who stopped attending work, and that it had forwarded a cheque of Kshs. 28,795/- through the Ministry of Labour in settlement, which she failed to collect. The Claimant testified but gave three inconsistent durations of service and contradictory figures on her pay; she produced no medical proof of the pregnancy or the loss of her child, which were central pillars of her claim. The Respondent's manager confirmed the casual engagement and the cheque of 8th June 2016. The court held the purported contractual ouster of the court's jurisdiction was of no effect, but found the Claimant's case riddled with inconsistencies and her an unreliable witness. Applying Section 47(5) of the Employment Act, the court held the Claimant failed to prove unfair termination. The suit was dismissed with no order as to costs, but the Respondent was ordered to pay the Claimant Kshs. 28,795/- within 14 days by cheque in her name.

Key legal issues

Whether the Claimant proved unfair, unlawful and wrongful termination

Holding

The suit was dismissed as unproved; the Claimant failed to discharge the burden under Section 47(5) of the Employment Act

Reasoning

The court found the Claimant's case riddled with inconsistencies: three varying periods of service, contradictory figures on daily pay (Kshs. 475/- pleaded, Kshs. 525/- testified), no medical proof of pregnancy or loss of the child despite it being a major pillar of her case, and no proof of a notice to show cause or dismissal. She came across as an unreliable witness and did not prove the termination.

p. 2

Whether the purported contract of employment could oust the court's jurisdiction

Holding

It could not; the clause was of no effect and the Claimant remained entitled to seek redress before the court

Reasoning

The Respondent's so-called contract contained a clause ousting the court's jurisdiction. The court held this was contrary to law - nothing could be further from the truth - and the Claimant could still seek redress before the court notwithstanding the illegal contract.

p. 2

Legal principles established

For complaints of unfair termination or wrongful dismissal, the burden of proving that such termination or dismissal occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer
An employment contract clause purporting to oust the court's jurisdiction is ineffective

Court orders

1.The Respondent shall pay the Claimant Kshs. 28,795/- forthwith within 14 days of the decision, by cheque in her name
2.The Claimant's suit is dismissed with no order as to costs

Authorities

Legislation

Employment ActSection 47(5)
Employment ActSection 36
Employment ActSection 49(1)(c)
Labour Institutions ActSection 15(c)

Cases cited (2)

David Kipkosgei Muttai v Green Palms Academy
[2014] eKLR
G M V v Bank of Africa Kenya Limited
[2013] eKLR

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act (specific provision not stated)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Peninnah Kathikwa Mwendwa v Re-Suns Spices Limited [2018] KEELRC 1086 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1086/eng@2018-09-28

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