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ELRCDismissedCause Number 1002 of 2013· [2018] KEELRC 1687 (KLR)

Daniel Maingi Kisina v Setmax Trader Ltd [2018] KEELRC 1687 (KLR)

Employment and Labour Relations Court of Kenya
23 February 2018
792 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee who claimed unfair dismissal lost because his own signed settlement documents proved he had voluntarily left his job.

What this practically means

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Executive summary

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The claimant, Daniel Maingi Kisina, sued Setmax Trader Ltd alleging that the respondent summarily dismissed him on 16th August 2012 on the ground that there was no more work, and that the dismissal was unlawful, oppressive and unconstitutional, with no payment of terminal dues. The respondent admitted employing him but asserted that the claimant had a history of voluntarily leaving and returning to the employment: he left in March 2011 after being paid all dues, was reinstated in May 2011, resigned again in October 2011 after ten days' work, was again reinstated in July 2012, and finally left on 15th August 2012. In oral evidence the claimant admitted signing documents acknowledging receipt of Kshs 25,809 and Kshs 28,067, and a clearance certificate confirming he had received all his dues and had no further claim. The respondent's witness, Mr Malde Lalji, testified that the claimant resigned three times and was paid his dues and issued with a clearance certificate. The court held that the burden of proving unfair termination or wrongful dismissal rests on the employee, while the employer must prove or justify the reason for dismissal. The claimant's own evidence and the respondent's unchallenged documents showed a pattern of the claimant walking in and out of employment at will, with each departure settled in full and final settlement which he acknowledged. The court found the claim without merit, dismissed it with costs, and ordered accordingly on 23rd February 2018.

Key legal issues

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01

Whether the claimant was summarily dismissed without payment of terminal dues

Holding

The claim was dismissed; the evidence showed the claimant repeatedly left employment at will and was paid his dues in full and final settlement on each occasion

Reasoning

The claimant alleged summary dismissal but his own testimony, together with the respondent's unchallenged documents, showed he had a history of walking in and out of the employment. He signed acknowledgments of receipt of Kshs 25,809 and Kshs 28,067, and a clearance certificate confirming receipt of all dues with no further claim. The relationship was cordial, with the parties treating departures and rehirings as voluntary.

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02

Allocation of the burden of proof in unfair termination claims

Holding

The employee bears the burden of proving unfair termination or wrongful dismissal; the employer bears the burden of justifying the reason for dismissal

Reasoning

The court articulated the statutory allocation of burdens: the employee must establish that unfair termination or wrongful dismissal occurred, and the employer must then prove or justify the reason for dismissal. Applying this, the claimant failed to discharge his burden because his own evidence contradicted his allegation of summary dismissal.

p. 1

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests with the employee, while the employer bears the burden to prove or justify the reason for dismissal

Court orders

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  1. 1.The claim is found without merit and dismissed with costs

Authorities

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Legislation

  • Employment Act
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment relationship between the parties)

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, "Daniel Maingi Kisina v Setmax Trader Ltd [2018] KEELRC 1687 (KLR)", Case Analysis (2018). Cause Number 1002 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1687/eng@2018-02-23

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