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Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC No. 359 of 2014· [2019] KEELRC 2452 (KLR)

Elijah Kioko Kitavi v Allied Plumbers Limited [2019] KEELRC 2452 (KLR)

Employment and Labour Relations Court
23 January 2019
2,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who skips court and ignores the hearing lost automatically, because the judge treated its defence paperwork as empty claims with no evidence behind them.

What this practically means

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Executive summary

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The Claimant, Elijah Kioko Kitavi, sued Allied Plumbers Limited for unlawful and unfair dismissal, alleging he was summarily dismissed on 28/10/2013 after declining to release 25 pipes without his supervisor's direct instructions. He pleaded a monthly salary of Kshs. 35,889 and sought notice pay, service pay, 12 months' compensation, costs and interest, contending he was never charged or heard before dismissal. The Respondent, in its Reply, asserted it employed him on 01/03/2011 at Kshs. 13,065 plus house allowance, and that he was dismissed for gross misconduct - refusing a lawful command and drunkenness on duty - in compliance with Section 41 of the Employment Act. The Respondent was served but did not attend the hearing on 30/7/2018, and the claim proceeded undefended. Relying on CMC Aviation Ltd v Cruisair Ltd, the court held that pleadings are not evidence and the Claimant's case remained uncontroverted. The payslips showed a gross salary of Kshs. 15,678. The court found no evidence that the reasons for dismissal existed and no evidence of a fair disciplinary process; under Section 45(2) of the Employment Act the dismissal was therefore unlawful and unjustified. The court awarded one month's salary in lieu of notice (Kshs. 15,678), 8 months' compensation (Kshs. 125,424) and unremitted NSSF dues for 2012 (Kshs. 3,600), totalling Kshs. 144,702, plus costs and interest at court rates from the date of judgment. The claim succeeded only in part relative to the amounts pleaded.

Key legal issues

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01

Whether the Respondent's non-attendance left the claim uncontroverted

Holding

Yes; despite service, the Respondent did not attend or adduce evidence, so the pleadings remained unproven averments and the Claimant's claim stood uncontroverted

Reasoning

The court noted the Respondent was served with a hearing notice on 8/6/2018 for the hearing on 30/7/2018 but failed to attend. Relying on CMC Aviation Ltd v Cruisair Ltd, the court held that pleadings are not evidence until proved or disproved; with no evidence from the Respondent, the Claimant's averments stood uncontroverted.

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02

Whether the dismissal was for a valid and fair reason under Section 45(2) of the Employment Act

Holding

No; the alleged reasons (refusal to obey instructions and drunkenness) were not proved, as the Respondent produced no evidence

Reasoning

The summary dismissal letter indicated the Claimant was dismissed for refusing to take instructions from Management and for reporting to site under the influence of alcohol, but the Claimant denied the allegations. With no evidence from the Respondent, the court found the reasons for dismissal were not established as valid and fair under Section 45(2).

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03

Whether the dismissal followed fair procedure

Holding

No; there was no evidence of a fair disciplinary process, notice to show cause, or a hearing as required by Section 41

Reasoning

The Claimant testified he was never given notice or a chance to answer any charges. The court found no evidence that a fair disciplinary process preceded the dismissal, breaching Sections 41 and 45 of the Employment Act and the requirements of natural justice, rendering the summary dismissal procedurally unfair.

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What remedies flow from the unfair dismissal

Holding

One month's salary in lieu of notice (Kshs. 15,678), 8 months' salary as compensation (Kshs. 125,424) and unremitted NSSF dues of Kshs. 3,600, plus costs and interest

Reasoning

Based on the payslip showing a gross salary of Kshs. 15,678, the court awarded notice pay under Section 35, compensation of 8 months for the unlawful dismissal considering the length of service, and unremitted NSSF dues for 2012, together with costs and interest at court rates from the judgment date.

p. 3

Legal principles established

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  • An employer bears the burden of proving both a valid reason for termination and that fair procedure was followed; failing both, dismissal is unfair under Section 45(2) of the Employment Act
  • Where a party fails to attend court after service, its pleadings remain mere averments and the undefended claim proceeds as uncontroverted

Court orders

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  1. 1.Respondent to pay the Claimant one month's salary in lieu of notice of Kshs. 15,678
  2. 2.Respondent to pay the Claimant 8 months' salary as compensation for unlawful dismissal, being 8 x 15,678 = Kshs. 125,424
  3. 3.Respondent to pay unremitted NSSF dues for 2012 of Kshs. 3,600
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 45 and 35 invoked)

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, "Elijah Kioko Kitavi v Allied Plumbers Limited [2019] KEELRC 2452 (KLR)", Case Analysis (2019). ELRC No. 359 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2452/eng@2019-01-23

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