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ELRCPartially Allowednot_stated_in_judgment· [2020] KEELRC 567 (KLR)

Apex Steel Limited v Dominic Mutuamuendo [2020] KEELRC 567 (KLR)

Employment and Labour Relations Court
30 July 2020
OMOnesmus N. Makau
6,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that employees claiming unfair termination must prove they were dismissed—otherwise the burden never shifts to the employer.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi (Onesmus N. Makau J) against a magistrates' court judgment awarding a former General Worker Kshs. 464,244.42 in terminal dues and compensation for allegedly unlawful summary dismissal on 27th October 2017. The employer's case was that the employee deserted duty from 24th August 2017 and his 11-month fixed term contract (4th January 2017 to 30th November 2017) simply lapsed by effluxion of time. The trial magistrate had held the claimant's evidence uncontroverted and awarded 12 months' salary as compensation, notice pay, rest days, public holidays, leave and service pay. Allowing the appeal, the Court held that the trial magistrate misapprehended the evidence and wrongly shifted the burden of proof: the employee, who withheld his bank statements and whose NSSF statement showed the last remittance in August 2017, failed to prove dismissal on a balance of probability, while wage sheets and the signed contract proved desertion and automatic lapse of the contract. Since dismissal was not proved, the burden under section 47(5) of the Employment Act never shifted to the employer to justify termination. The awards for unfair termination compensation, notice pay, rest days and public holidays were set aside for want of proof and unpleaded particulars of special damages; the service pay award was set aside because NSSF membership with regular remittances disqualifies the claim under section 35(6); and the leave award was reduced to Kshs. 4,245.95 with interest from the date of filing suit, the quantum having been wrongly assessed on an inflated salary. Each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether the respondent was dismissed or his fixed term contract lapsed by effluxion of time

Holding

The respondent failed to prove dismissal; the appellant proved desertion from 24th August 2017 and automatic lapse of the contract on 30th November 2017

Reasoning

The respondent's own NSSF statement showed the last remittance in August 2017, corroborating the wage sheets showing he last worked in August 2017. He withheld his bank statements, called no witness to prove he worked until 27th October 2017, and admitted signing the 2017 fixed term contract ending 30th November 2017. Under sections 107 and 109 of the Evidence Act he who alleges must prove, and the trial magistrate erred in treating his evidence as uncontroverted.

p. 6
02

Whether the dismissal, if any, was unfair and unlawful

Holding

Not proved; without proof of dismissal the burden never shifted to the employer under section 47(5) of the Employment Act

Reasoning

The trial magistrate found unfair termination on the basis that the respondent's evidence was uncontroverted, but the Court held that finding was founded on no evidence, on misapprehension of the record, and on an erroneous shifting of the burden of proof from the employee to the employer contrary to section 47(5) of the Employment Act.

p. 6
03

Whether the awards for rest days, public holidays and leave should stand

Holding

Rest days and public holidays awards set aside for want of particulars and proof; leave award reduced to Kshs. 4,245.95

Reasoning

The respondent admitted on cross-examination that he was paid whenever he worked on a Sunday and pleaded no particulars of the Sundays or holidays allegedly worked unpaid; special damages require specific pleading and proof. The leave award was assessed on the wrong salary of Kshs. 19,432 instead of the contractual Kshs. 12,616.50, so the Court recomputed it. However, once the respondent claimed he never took leave, the employer was under a duty to produce leave records to disprove the claim.

p. 7
04

Whether the respondent was entitled to service pay

Holding

No; membership of NSSF with regular remittances disqualifies the claim under section 35(6) of the Employment Act

Reasoning

The three contracts totalled 24 months; contributions of Kshs. 8,400 were remitted representing 21 months, with the unreMITTED months being September to November 2017 when the respondent had deserted. The Court agreed the appellant remitted all contributions except when the respondent was out of employment, so the service pay award was set aside.

p. 7

Legal principles established

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  • A fixed term contract lapses automatically by effluxion of time and carries no rights or obligations beyond the date of expiry; lapsing of a fixed term contract is not a dismissal
  • The employee who alleges unfair termination bears the burden of proof under section 47(5) of the Employment Act, and that burden does not shift to the employer unless dismissal is first proved
  • Service pay is not payable where the employee is a member of NSSF or a pension or gratuity scheme and contributions were remitted
  • A party claiming special damages must specifically plead and prove the particulars, and the duty cannot be waived by the opponent's failure to tender evidence in defence
  • On a first appeal the court re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.Appeal allowed save for the award of leave which was reduced to Kshs. 4,245.95 plus interest from the date of filing suit
  2. 2.Award of 12 months' salary compensation for unfair termination plus salary in lieu of notice set aside
  3. 3.Award of Kshs. 144,212.64 for rest days set aside
  4. 4.Award of Kshs. 17,287.03 for public holidays worked set aside
  5. 5.Award of Kshs. 17,190 for service pay set aside
  6. 6.Each party to bear his/its own costs of the appeal
  7. 7.Court will not interfere with any costs awarded by the trial court

Authorities

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Legislation

  • Employment Act, 2007section 10(3)(c)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 35(5)
  • Employment Act, 2007section 35(6)
  • Evidence Act, Cap 80section 2
  • Evidence Act, Cap 80sections 107 and 109
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (14)

  • Teresa Carlo Omondi v Transparency International- Kenya
    [2017] eKLR
  • Johnstone Luvisia v Allpack Industries Limited
    [2019] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • Charles Kariuki Mwangi v Intersecurity Services Limited
    [2018] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    [2016] eKLR
  • Elizabeth Njeri Kinyua v Joel Mugo & Another
    [2019] e KLR
  • Leena Apparels (EPZ) Limited v Nyevu Juma Ndokolani
    [2018] e KLR
  • Victor Omwenga v General Timothy Orwenyo t/a GMT Services
    [2019] e KLR
  • Charles Maina Munyua v Victory Construction Limited
    [2013] e KLR
  • Everline Manuni v Mudete Tea Factory
    [2018] e KLR
  • Elijah Kipkoros Tonui v Ngara Opticians T/A Bright Eyes Limited
    [2014] e KLR
  • Mary Njoki v John Kinyanjui Matheru
    [1985] e KLR
  • Kenya Ports Authority v Kusthon (Kenya) Limited
    [2009] 2 EA 212
  • J. S. M. v E. N. B.
    [2015] e KLR
On appeal from
Magistrates' Court (ELRC subordinate court)
not_stated_in_judgment
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court from the subordinate court's judgment in an employment claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Apex Steel Limited v Dominic Mutuamuendo [2020] KEELRC 567 (KLR)", Case Analysis (2020). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/567/eng@2020-07-30

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