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ELRCDismissedCause No 268 of 2018· [2019] KEELRC 2597 (KLR)

Kenya Seed Company v Zakayo Cheruiyot [2019] KEELRC 2597 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret (High Court)
28 November 2019
ANAbuodha Jorum Nelson
1,703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out both an employer's debt claim and a former employee's unfair termination claim because neither side proved their case with solid evidence.

What this practically means

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Executive summary

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Kenya Seed Company (claimant) sued its former company secretary, Zakayo Cheruiyot, seeking Kshs. 2,039,782/05, said to be the balance of an outstanding loan of Kshs. 2,617,183 after applying the respondent's terminal dues of Kshs. 577,401/10 following termination of his employment in 2004. The respondent denied the debt, averring any loan was repaid or recoverable from his dues, and counterclaimed for general damages for unlawful and malicious termination without notice or reason, on account only of 'loss of confidence'. The claimant's witnesses could not produce original loan records, attributing their destruction to a fire at the claimant's premises; the fire was never pleaded and the police abstract did not state when it occurred. The court held the claimant bore the burden of proof and, lacking primary or secondary evidence, dismissed the claim, noting also the inconsistency of the claimant paying the respondent Kshs. 3,609,050 in terminal dues in April 2005 contemporaneously with filing suit. On the counterclaim, the court held the termination occurred in February 2004 before the present Employment Act; under the repealed Cap 226 there was no compensation for unfair termination and, at common law, no duty to give reasons unless the contract required it, notice pay having been given. As the respondent gave no breakdown of benefits received, the counterclaim was also dismissed. Both claim and counterclaim were dismissed, each party to bear their own costs.

Key legal issues

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01

Proof of the alleged loan debt

Holding

The claim was dismissed because the claimant failed to prove the debt; the fire incident destroying documents was not pleaded and the police abstract did not show when the fire occurred

Reasoning

The claimant's finance director could not produce original documents, attributing their loss to a fire. The fire was never pleaded and the police abstract was defective. The court held the claimant, a public and corporate body with auditors and bankers, should have obtained secondary records. It also found it inconsistent that the claimant paid the respondent Kshs. 3,609,050 in terminal dues contemporaneously with filing suit.

p. 2
02

Counterclaim for unfair termination pre-2004

Holding

The counterclaim failed because the 2004 termination predated the current Employment Act, and under Cap 226 (repealed) only pay in lieu of notice was available, which had been paid

Reasoning

Termination took place in February 2004 before the present Employment Act. The court applied the former legal position that there was no obligation to hear the employee or give reasons unless the contract required it, and no compensation for unfair termination existed. The respondent conceded receiving terminal benefits without a breakdown, so the court declined to award more.

p. 2

Legal principles established

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  • Whoever alleges must prove to the required evidentiary standard in civil claims
  • Under the repealed Employment Act (Cap 226), there was no statutory compensation for unfair termination and no common law duty to give reasons for termination unless provided in the contract

Court orders

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  1. 1.The claimant's claim is dismissed
  2. 2.The respondent's counterclaim is disallowed/dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actpresent (post-2007) enactment referred to
  • Employment Act (Cap 226, now repealed)provisions on termination and pay in lieu of notice
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (Cause filed in the ELRC); suit originated from a Plaint filed on 13th April 2005

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, "Kenya Seed Company v Zakayo Cheruiyot [2019] KEELRC 2597 (KLR)", Case Analysis (2019). Cause No 268 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2597/eng@2019-11-28

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