Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment (Cause referred to as 'the Cause')· [2018] KEELRC 2421 (KLR)

Oliver Mukunza v AC Nielsen Kenya Limited [2018] KEELRC 2421 (KLR)

Employment and Labour Relations Court
23 February 2018
RSRadido Stephen
617 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

In Kenya's Employment Court, employers—not employees—must prove why a dismissal was fair, so employees cannot force the employer's witnesses to testify.

What this practically means

#

Executive summary

#
This was a ruling on a motion dated 10 January 2018 by the Claimant in an unfair termination cause, seeking witness summons against Abhik Gupta (Managing Director East and West Africa) and Pete Gale (Retailer Lead, Emerging Markets), who had been the Claimant's direct supervisors before his termination on grounds of performance. The Claimant argued their evidence was critical to the fairness question and that no prejudice would befall the Respondent. The Respondent opposed, arguing the application was founded on repealed section 20(2) of the Industrial Court Act, that performance was not an issue for determination, that a claimant cannot dictate how the respondent prosecutes its defence, and that bringing the witnesses from outside the jurisdiction would be costly. The Court, per Radido J, held that unfair termination disputes are primarily governed by the Employment Act, 2007, whose sections 41, 43, 45 and 47 allocate legal and evidentiary burdens between the parties, with the employer bearing the more onerous burden of proving the reasons for termination and their validity and fairness. The Employment Act departs from the Evidence Act's general rule that he who asserts must prove, and recourse to the Evidence Act is appropriate only where the Employment Act is deficient. Since the employer is privy to the reasons for termination, the employee need not compel the employer's witnesses; failure by the employer to discharge its burden would yield a favourable finding for the employee. The Court dismissed the application with costs to the Respondent and indicated it would issue pre-trial directions under the ELRC (Procedure) Rules, 2016 to progress the cause to hearing.

Key legal issues

#
01

Allocation of the burden of proof in unfair termination disputes

Holding

The Employment Act, 2007 places legal and evidentiary burdens on both parties, with the employer bearing the more onerous burden of proving the reasons for termination and their validity and fairness; the employee need not compel the employer's witnesses

Reasoning

Sections 41, 43, 45 and 47 of the Employment Act allocate evidentiary burdens that depart from the general rule in the Evidence Act that he who asserts must prove. Because the employer is privy to the reasons for termination, it must prove those reasons and their validity and fairness, and failure to do so results in a favourable finding for the employee. Recourse to the Evidence Act is only appropriate where the Employment Act is deficient. A claimant therefore has no legitimate interest in dictating how the employer prosecutes its defence.

p. 2
02

Whether a claimant may compel the employer's witnesses by summons in a termination dispute

Holding

The application for witness summons was dismissed; it is not for a claimant to dictate the manner in which the respondent prosecutes its defence

Reasoning

The court held that where the Employment Act has imposed burdens on the employer, the employee should not demand that the employer prove the reasons for termination in a particular way or call particular witnesses. Failure by the employer to discharge its statutory burden would itself enure to the employee's benefit, so calling the proposed witnesses was unnecessary. The application was accordingly found devoid of merit.

p. 1

Legal principles established

#
  • Employment disputes concerning unfair termination are primarily prosecuted under the Employment Act, 2007, and recourse to the Evidence Act and other statutes should be had only where the Employment Act is deficient
  • It is the employer who is privy to the reasons for terminating an employment contract and it is therefore incumbent upon the employer to prove those reasons and that they were valid and fair

Court orders

#
  1. 1.The application dated 10 January 2018 is dismissed with costs to the Respondent
  2. 2.The Court will hereinafter issue appropriate pre-trial directions as required by the Employment and Labour Relations Court (Procedure) Rules, 2016

Authorities

#

Legislation

  • Industrial Court Actsection 20(2)
  • Employment Act, 2007sections 41, 43, 45, 47(5)
  • Evidence Actgeneral burden of proof rule
  • Employment And Labour Relations Court (Procedure) Rules, 2016pre-trial directions
Jurisdiction invoked
Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Oliver Mukunza v AC Nielsen Kenya Limited [2018] KEELRC 2421 (KLR)", Case Analysis (2018). Not stated in judgment (Cause referred to as 'the Cause'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2421/eng@2018-02-23

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