Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 354 of 2017· [2019] KEELRC 816 (KLR)

Kazi Suleiman Juma v Milly Glass Workers Limited [2019] KEELRC 816 (KLR)

Employment and Labour Relations Court
27 September 2019
JRJames Rika
1,180 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court dismissed a worker's unfair termination claim because he couldn't prove it, reminding employees they bear the burden of proof.

What this practically means

#

Executive summary

#
The Claimant filed a Statement of Claim on 26th April 2017 seeking a finding of unfair termination and various reliefs totalling Kshs. 471,375, comprising notice pay of Kshs. 15,750, accrued annual leave of 9 years at Kshs. 141,750, 12 months' salary compensation of Kshs. 189,000, severance pay of Kshs. 70,875, costs and a certificate of service. He pleaded that he was employed by the Respondent as a casual employee on 1st November 2007 and that his contract was terminated by word of mouth by the Respondent's Human Resource Manager on 10th April 2016 without notice or hearing; he alternatively pleaded termination on account of redundancy. The Respondent filed a Statement of Response in the nature of a general denial, asserting without prejudice that the Claimant deserted. Both parties testified; the Respondent's Human Resource Manager, Georgina Ndunge Kilonzo, produced NHIF data showing the Claimant had three different Employer Numbers, indicating employment elsewhere, and testified that the ACL department operated only when there were bottle-labelling orders. The Court held that the Claimant's contradictory evidence was mumbled and could not be accepted, that he failed to discharge the burden of proving unfair termination under Section 47(5) of the Employment Act 2007, that no redundancy was established so severance was unavailable, and that his claim for nine years' accrued leave rested on an unproven premise of continuous employment. The Claim was dismissed in its entirety with no order on costs.

Key legal issues

#
01

Burden of proof in unfair termination claims

Holding

The Claimant failed to discharge his burden of proving unfair termination under Section 47(5) of the Employment Act 2007

Reasoning

The Claimant gave contradictory evidence, alleging oral termination by a Human Resource Officer in one breath and claiming redundancy in another. The Court found this evidence mumbled and unconvincing. Under Section 47(5) of the Employment Act 2007, the employee bears the burden of proving unfair termination while the employer must justify termination. The Claimant's inconsistent pleadings and evidence meant he failed to establish the threshold of unfair termination.

p. 2
02

Casual employment and desertion

Holding

For a casual employee who stops reporting, the employer's assumption that the employee was unwilling to resume work was not unreasonable, and no disciplinary hearing for desertion was necessary

Reasoning

The Claimant described himself as a casual employee and never sought conversion to regular employment. The ACL department was not continuously operational. The NHIF records showed different Employer Numbers suggesting the Claimant did not work in continuity for the Respondent. Given the casual nature of employment, the Respondent's assumption that the Claimant was unwilling to continue working was reasonable and no disciplinary process was warranted.

p. 2
03

Severance pay and redundancy

Holding

Severance pay cannot be awarded where no redundancy has been established

Reasoning

The Claimant sought severance pay but the Court found no redundancy situation leading to termination. The Respondent's Human Resource Manager confirmed there was no redundancy in April 2016, and the Claimant's own contradictory pleading of both oral termination and redundancy undermined his claim. Severance is a redundancy entitlement, and absent proof of redundancy, the claim fails.

p. 2

Legal principles established

#
  • In any complaint of unfair termination, the burden of proving unfair termination rests with the Employee, while the burden of justifying termination rests with the Employer
  • Severance pay is payable only where redundancy has been established

Court orders

#
  1. 1.The Claim is dismissed
  2. 2.No order on costs - each party bears their own costs

Authorities

#

Legislation

  • Employment Act 2007Section 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (unfair termination complaint under Section 47(5))

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kazi Suleiman Juma v Milly Glass Workers Limited [2019] KEELRC 816 (KLR)", Case Analysis (2019). Cause No. 354 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/816/eng@2019-09-27

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