Walter Onyango Odago v Kenya National Union of Teachers(Head Quarters) & another [2020] KEELRC 798 (KLR)
The bottom line
#A Kenyan union employee wrongfully suspended for 33 months without pay won his salary back after 18 years, because his employer produced no evidence at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's suspension and dismissal were lawful and procedurally fair
The suspension and dismissal were procedurally irregular and unlawful because the claimant's unchallenged evidence was that he was not heard, and the respondents produced no evidence to rebut it
The claimant testified he was not heard by the Special General Meetings as required under the union constitution. The respondents called no witness, so their bundle of documents, marked for identification only, had no evidential value. Guided by Kenneth Nyaga Mwige v Austin Kiguta, the court found the claimant had proved on a balance of probability that the suspension and dismissal were irregular and unlawful.
Evidential status of documents marked for identification but not produced as exhibits
Such documents have no evidential value unless formally produced and proved by a witness
Relying on the Court of Appeal decision in Kenneth Nyaga Mwige v Austin Kiguta, the court held that a document marked for identification must be proved; if not marked as an exhibit it is not part of the record and would be a hearsay, untested and unauthenticated account. The respondents' bundles, not produced as exhibits by any witness, therefore carried no evidential weight.
Entitlement to salary withheld during suspension
The claimant is entitled to his salary for the 33 months of suspension since there was no legal basis for withholding it
The suspension letter indicated the claimant was suspended without pay. No justification or legal basis was given for withholding the salary. The court declared the claimant entitled to the salary withheld from 10.2.2002 to 13.3.2005, a period of 37 months, but limited the award to the 33 months pleaded.
The 2nd Respondent's counterclaim of KShs. 960,000/=
The counterclaim stands dismissed for lack of evidence as no witness was called to prosecute it
The respondents did not call any witness and therefore did not prosecute their defence and counterclaim. Without evidence, the claim for the unrefunded sum of KShs. 960,000/= could not stand.
Legal principles established
#- A document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness
Court orders
#- 1.Declaration that the suspension and dismissal of the claimant by the respondents is irregular and unlawful
- 2.The respondents to calculate and pay the claimant his full salary withheld during the 33 months of suspension from 10.2.2002 to 13.3.2005, less statutory deductions, within 30 days of the judgment
- 3.Interest on the amount awarded at court rates from the date of filing suit
- 4.Costs of the suit to the claimant together with interest from the date of filing the suit
- 5.The 2nd Respondent's counterclaim of KShs. 960,000/= stands dismissed for lack of evidence
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction following transfer from the High Court by order of 25.05.2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walter Onyango Odago v Kenya National Union of Teachers(Head Quarters) & another [2020] KEELRC 798 (KLR)", Case Analysis (2020). Cause No 1246 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/798/eng@2020-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.