Sammy Murere Biketi v Insteel Limited [2019] KEELRC 710 (KLR)
The bottom line
#A Kenyan employer that shows up to court but calls no witnesses lost KShs 4.15 million in an unfair dismissal case—filed documents mean nothing unless formally produced as evidence.
What this practically means
#Executive summary
#Key legal issues
#Evidential value of unadopted pleadings and documents
The Respondent's memorandum of response and attached documents, never adopted as evidence, could not be relied upon; the Claimant's case stood uncontroverted
The court applied the principle that pleadings are not evidence, citing English authorities and the Court of Appeal in Kenneth Nyaga Mwige v Austin Kiguta. The Respondent filed documents but its counsel closed its case without calling any witness or producing the documents as exhibits, so its assertions had no evidential value.
Unfair termination and failure to hear the Claimant
The Claimant was terminated without being served a dismissal letter and without a hearing; he was entitled to compensation
The Claimant testified he was denied access to the workplace after leave in August 2012, was never given a notice to show cause or hearing, and only learnt of his dismissal through advocates' letter of 1st December 2014. With no controverting evidence, the court found no proof of service of any dismissal letter and treated 1st December 2014 as the termination date, awarding 8 months' salary as compensation.
Unpaid earned leave
The Claimant proved he did not take leave during employment and was awarded unpaid earned leave of 43 days as computed by the Respondent
The court accepted the Claimant's uncontroverted testimony that he did not go on annual leave during his employment and adopted the Respondent's own computation of 43 days of accrued leave, awarding Kshs.163,400.
Legal principles established
#- Pleadings are not evidence; a document marked for identification only becomes evidence when formally produced as an exhibit by a witness
- Where a respondent adduces no evidence, the claimant's case remains uncontroverted
- Where there is no proof of service of a dismissal letter, the termination is taken to occur on the date the claimant learnt of it
Court orders
#- 1.Payment of withheld salary from August 2012 up to and including 1st December 2014 being 21 months x Kshs.114,000 = Kshs.3,078,000
- 2.Payment of 8 months' salary as compensation for unfair termination = Kshs.912,000
- 3.Payment of unpaid but earned leave for 43 days = Kshs.163,400
- 4.Respondent to pay costs of the suit plus interest at Court rates with effect from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair and unlawful constructive dismissal and terminal dues claims under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sammy Murere Biketi v Insteel Limited [2019] KEELRC 710 (KLR)", Case Analysis (2019). Cause No 738 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/710/eng@2019-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.