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ELRCDismissedCause Number 553 of 2013· [2018] KEELRC 2243 (KLR)

Danson Nyaga v Mastermind Tobacco Limited [2018] KEELRC 2243 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
9 February 2018
ANAbuodha J. N.
713 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a worker's unfair termination claim because he couldn't prove he was actually employed by the company he sued.

What this practically means

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Executive summary

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The claimant, Danson Nyaga, sued Mastermind Tobacco Ltd alleging that from early March 2000 he was employed as a welder at a daily wage of Kshs 446, and that on 4th February 2013 the respondent's Manager, Mr Kupal, dismissed him because he refused to withdraw a civil case relating to injuries he suffered at work. He claimed he had been offered Kshs 55,000/= to withdraw the suit and was dismissed without a hearing. The respondent denied employing him, contending he was not contracted to it and could not be dismissed by an entity that never employed him. In evidence, the claimant described his working hours, signing in and out, weekly cash wages, and his 2011 injury, though he gave contradictory evidence on whether he had an appointment letter. The respondent's witness, Mr Duncan Karani, denied the claimant was employed by the respondent, admitted NGM Company Ltd was a sister company, and denied knowledge of Mr Kupal and Mr Daniel Simiyu. Applying section 47(5) of the Employment Act, the court held the claimant bore the burden of proving his allegations on a balance of probabilities. Finding contradictions in his evidence and noting he called no witnesses to corroborate employment by the respondent, the court held it was possible he was employed by NGM and not the respondent. The claim was found unmerited and dismissed with costs.

Key legal issues

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01

Whether the claimant was employed by the respondent

Holding

The claimant failed to prove employment by the respondent; the evidence suggested he may have been employed by NGM Company Limited, a sister company.

Reasoning

The claimant gave contradictory evidence on whether he was issued with an appointment letter, and failed to call witnesses such as Daniel Simiyu or former colleagues to corroborate his claim of employment. The respondent's witness denied the claimant was employed by the respondent but admitted NGM Company Ltd was a sister company. The court found it unsafe to burden the respondent with the claim.

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02

Burden of proof in unfair termination claims

Holding

The employee bears the burden of proving unfair termination or wrongful dismissal on a balance of probabilities.

Reasoning

Section 47(5) of the Employment Act allocates the burden: the employee must prove unfair termination occurred, while the employer must justify the grounds for termination. In this first-instance claim the claimant did not discharge that burden of establishing his employment relationship with the respondent, so the claim failed.

p. 1

Legal principles established

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  • Under section 47(5) of the Employment Act, the burden of proving unfair termination rests with the employee, while the burden of justifying the grounds for termination rests on the employer.
  • A claimant must prove allegations on a balance of probabilities.

Court orders

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  1. 1.The claim is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, section 47(5) applied)

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, "Danson Nyaga v Mastermind Tobacco Limited [2018] KEELRC 2243 (KLR)", Case Analysis (2018). Cause Number 553 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2243/eng@2018-02-09

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