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ELRCPartially AllowedCause 1064 of 2013· [2018] KEELRC 2285 (KLR)

Ernest Nechesa Obok v Liddos Club Limited [2018] KEELRC 2285 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
23 February 2018
789 words in judgment
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The bottom line

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A Kenyan court awarded a dismissed cleaner Kshs 145,000 because his employer showed up to defend the case but never presented any evidence.

What this practically means

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Executive summary

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The claimant, Ernest Nechesa Obok, sued Liddos Club Limited claiming he was employed as a cleaner from September 2007 to 25 October 2012 at a monthly salary of Kshs 8,000. He averred that on 25 October 2012, after being sent to buy soap, he pushed back a door that could only be closed from the inside; the manager directed the secretary to deduct Kshs 2,000 from his salary as punishment, and upon his refusal he was summarily dismissed and never paid his final dues. The respondent denied any employment relationship, asserting the claimant had merely offered to collect garbage from the club from February 2012 until his services were stopped on 30 October 2012 for incompetence and a cheaper offer. At hearing, the respondent chose not to call evidence; only the claimant testified. The court held that statements in pleadings are not evidence and must be backed by documents, so the respondent's failure to adduce evidence left the claimant's assertions uncontested. Applying the rule that the employee proves unfair termination while the employer must justify the dismissal with valid reasons and due process under the Employment Act, the court found the burden of proof was not discharged. Judgment was entered for the claimant in the total sum of Kshs 145,000, covering notice pay, service pay, unpaid October salary, house allowance, untaken leave, and seven months' salary for unfair termination, with most items subject to statutory deductions and taxes. The judgment was delivered at Nairobi on 23 February 2018 by Abuodha J.

Key legal issues

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01

Existence of an employment relationship

Holding

The court accepted the claimant's assertion that he was employed as a cleaner, as the respondent failed to call evidence or produce documents to support its claim that he was only a garbage collector

Reasoning

The respondent denied the employment relationship, asserting the claimant merely collected garbage. At hearing the respondent chose not to call evidence; only the claimant testified. Statements in pleadings are not evidence and must be supported by documents. The respondent's failure left the claimant's assertions uncontested, so the employment relationship was taken as established.

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02

Fairness of the summary dismissal

Holding

The dismissal was unfair; the employer failed to prove valid reasons and due process

Reasoning

The claimant was summarily dismissed for refusing a Kshs 2,000 deduction over leaving a door open. Dismissal must be for valid and justifiable reasons and follow due process under the Employment Act. The burden of proving these requirements lies on the employer, and the respondent, having not adduced evidence, did not discharge that burden.

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Legal principles established

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  • In claims for unfair termination, the employee must prove that unfair termination took place, while the employer bears the duty to show that valid reasons existed for the termination
  • A dismissal must be for valid and justifiable reasons and with due process under the Employment Act, and the burden of proving this rests on the employer
  • Statements in pleadings are not evidence; averments must be backed by supporting documents or oral evidence

Court orders

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  1. 1.Judgment entered in favour of the claimant for a total of Kshs 145,000 comprising one month salary in lieu of notice (Kshs 8,000), service pay at 15 days for each completed year of service (Kshs 20,000), unpaid salary for October (Kshs 8,000), unpaid house allowance (Kshs 13,000), payments in lieu of untaken leave (Kshs 40,000) and seven months' salary for unfair termination (Kshs 56,000)
  2. 2.Items (a), (b), (c), (d) and (f) to be subject to statutory deductions and taxes

Authorities

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Legislation

  • Employment Actdue process requirements for termination
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution over employment and labour relations disputes (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, "Ernest Nechesa Obok v Liddos Club Limited [2018] KEELRC 2285 (KLR)", Case Analysis (2018). Cause 1064 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2285/eng@2018-02-23

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