Peter Njane Kagera v Motor Boutique Limited [2020] KEELRC 1638 (KLR)
The bottom line
#A Kenyan employee suing for unfair dismissal must first prove he was actually dismissed; without evidence, his claim fails even if the employer's case is weak.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant proved dismissal by the respondent
The claim failed because the claimant did not prove on a balance of probabilities that he was dismissed; there was no termination letter, no evidence of a summons or of the claimant being barred from the premises.
The court applied Sections 107, 108 and 109 of the Evidence Act together with Section 47(5) of the Employment Act. The claimant asserted he was told to go home and await recall, while the respondent said he absconded. There were no documents proving the claimant was summoned to explain the incident, that the HR sought him out, or that he was denied access to the premises, and RW1 denied the claimant was dismissed. The court held the claimant, as the party seeking redress, bore the burden of proving dismissal before the employer could be called upon to justify termination.
Whether the respondent's counterclaim for notice pay succeeds
The counterclaim failed because the respondent took no action at all against the allegedly absconding employee and did not prove it did anything upon the alleged desertion.
The court observed that the respondent appeared to have filed the counterclaim only reactively because the claimant filed suit. The respondent neither dismissed the claimant nor issued a show cause notice, did not report the alleged collusion to defraud to the police, and did not report the alleged abscondment to the Labour Officer. The court found the respondent simply did nothing and therefore no justification existed to enter judgment on the counterclaim.
Legal principles established
#- Since it is the claimant who approaches the court, he carries the burden of proving that he was dismissed; only after that is proved is the respondent called upon to justify the grounds of termination, per Section 47(5) of the Employment Act read with Sections 107, 108 and 109 of the Evidence Act.
Court orders
#- 1.The claim is dismissed
- 2.The counterclaim is dismissed
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (no specific constitutional/statutory provision invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Njane Kagera v Motor Boutique Limited [2020] KEELRC 1638 (KLR)", Case Analysis (2020). Employment and Labour Relations Court Claim (Memorandum of Claim dated 11th December 2014) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1638/eng@2020-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.