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ELRCDismissedCause 482 of 2012· [2018] KEELRC 1148 (KLR)

Grace Mwethya Mulu v Uzuri Foods Limited [2018] KEELRC 1148 (KLR)

Employment and Labour Relations Court of Kenya
21 September 2018
ANAbuodha J. N.
524 words in judgment
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The bottom line

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A Kenyan court dismissed an unfair termination claim because the employee couldn't prove her case — evidence and admissions decided it.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a baker for six years and two months at a monthly salary of Kshs 8,789, sued for unfair and wrongful termination, alleging her services were terminated on 20th March 2011 without explanation or notice and without payment of terminal dues. The respondent defended the claim as a lawful termination for poor performance, citing oral and written warnings dated 24th September and 12th November 2010, and asserted that the claimant's dues were computed but she refused to collect them. In oral evidence the claimant conceded that she had been warned over poor production, was paid overtime and house allowance, and that NSSF contributions were remitted though her statement was not up to date. The respondent's witness, Mr William Macharia, confirmed the performance concerns, the warning letters, the reasons furnished for termination, and that the computed dues remained available for collection upon signing the computation form. The court held that an unfair termination claim questions the validity of the reasons for dismissal and the fairness of the process under the Employment Act; the claimant did not refute either. The burden of proving unfair termination rests on the employee, and the claimant failed to discharge it. Her claims for house allowance and overtime failed on her own admissions, and the claim for service pay was unsustainable given her NSSF membership. The claim was dismissed with no order as to costs, but the court directed that the claimant be paid her terminal dues as conceded by the respondent upon signing the computation form. Judgment was delivered at Nairobi on 21st September 2018 by Abuodha J. N.

Key legal issues

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01

Validity of reason for and process of termination

Holding

The claimant did not refute the reason for dismissal (poor performance) or the process followed, so unfair termination was not established

Reasoning

A claim for unfair termination questions the validity of the reasons for dismissal and the fairness of the process under the Employment Act. The claimant's pleadings and evidence did not dispute either the stated reason of poor performance or the procedure adopted, supported by warning letters of 24th September and 12th November 2010. Her failure to challenge these meant the essential elements of the claim were unproved.

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02

Burden of proof and unsustainable heads of claim

Holding

The claimant failed to discharge the burden of proving unfair termination, and her claims for house allowance, overtime and service pay failed on her own admissions

Reasoning

The employee bears the burden of proving unfair termination. The claimant admitted in cross-examination that overtime and house allowance were paid, and conceded NSSF membership, which precludes service pay. Her unrebutted failure of proof warranted dismissal of the claim, subject only to the terminal dues the respondent conceded were computed and available.

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Legal principles established

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  • The burden of proving unfair termination rests on the employee

Court orders

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  1. 1.The claim stands dismissed with no order as to costs
  2. 2.The claimant to be paid her terminal dues as conceded by the respondent upon signing the computation form

Authorities

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Legislation

  • Employment Act
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act)

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, "Grace Mwethya Mulu v Uzuri Foods Limited [2018] KEELRC 1148 (KLR)", Case Analysis (2018). Cause 482 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1148/eng@2018-09-21

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