Antony Imbayi Atolwa v Yoshitaka Endo [2019] KEELRC 406 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for suing over work injuries is unfair termination, awarding compensation despite weak proof of overtime claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair or a mutual separation
The court found the termination unfair: the employer's admitted anger and verbal directive to leave within 30 minutes after the employee sued him showed the employment was terminated on a ground not valid and fair under sections 45 and 46 of the Employment Act.
The respondent admitted under oath he was unhappy that the claimant had sued him and that they 'mutually agreed' to part until the suit was resolved. The court held that suing an employer over work injuries is not a fair reason for dismissal under section 46(h) unless shown to be irresponsible and without foundation. The respondent gave no such proof, so the claimant discharged his burden under section 47(5).
Quantum of compensation and notice pay
One month's salary in lieu of notice plus ten months' salary compensation awarded under section 49(1), based on ten years of service and absence of misconduct.
Exercising discretion under section 49(1) of the Employment Act, the court considered the claimant's roughly ten years of service and that he did not contribute to the termination through misconduct, awarding ten months' salary as compensation plus one month's notice pay.
Overtime, underpayment and service pay claims
All three claims dismissed for lack of particulars and proof; special damages must be particularised and specifically proven.
The claimant gave no evidence quantifying the overtime hours or how the global figures were derived. Following Rogoli Ole Manadiegi, the burden of establishing excess hours rests with the employee. The underpayment and service pay claims similarly failed for want of particulars and computation evidence.
Respondent's counterclaim
Counterclaim of KShs. 23,500 allowed, the claimant having admitted the loan balance under cross-examination.
The claimant admitted in cross-examination that he owed the respondent KShs. 23,500 being a loan balance, so the court allowed the counterclaim and set it off against the claimant's award.
Legal principles established
#- An employee's initiation of legal proceedings against his employer does not constitute a fair reason for dismissal unless the complaint is shown to be irresponsible and without foundation.
- The burden of proving unfair termination lies with the employee under section 47(5) of the Employment Act.
- The burden of establishing overtime hours rests with the employee, who must justify any global figure claimed.
Court orders
#- 1.Judgment entered for the claimant against the respondent: one month notice KShs. 9,780.75; ten months' salary compensation KShs. 97,807.50; half salary for August 2014 KShs. 4,890.50; total KShs. 112,478.75.
- 2.Counterclaim of KShs. 23,500.00 allowed and set off against the claimant's award, leaving KShs. 88,978.75 payable.
- 3.Award subject to statutory deductions but in addition to costs and interest at court rates from the date of judgment.
- 4.Respondent to issue the Claimant with a Certificate of Service.
- 5.Claims for overtime, underpayment and service pay dismissed.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Antony Imbayi Atolwa v Yoshitaka Endo [2019] KEELRC 406 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/406/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.