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ELRCDismissedELRC Cause (Malindi) - Statement Claim filed 29th May 2018· [2020] KEELRC 1661 (KLR)

Obadiah Kebabe Gisore v Umoja Rubber Products Limited [2020] KEELRC 1661 (KLR)

Employment and Labour Relations Court
12 February 2020
LNLINNET NDOLO
1,119 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an employee's unfair termination claim because he couldn't prove it—his sick note was unsigned and unverified.

What this practically means

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Executive summary

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This is a first-instance employment claim decided by the Employment and Labour Relations Court at Malindi. The Claimant, Obadiah Kebabe Gisore, sued his former employer, Umoja Rubber Products Ltd, alleging that his employment was terminated on 3rd January 2017 because he had been unwell from 28th December 2016, having drunk contaminated water at the Respondent's premises. He claimed one month's salary in lieu of notice, salary for the remainder of his contract, salary for December 2016, and compensation for unfair termination. The Respondent denied the claim, asserting the Claimant was engaged only for one month as a general labourer on a consolidated salary of Kshs. 6,957.50, that he frequently absented himself, that he was paid Kshs. 4,850 on 30th December 2016, and that it had no employees named Bonge or Dan. It also portrayed him as a vexatious litigant with similar suits against other former employers. The court framed two issues: whether the Claimant proved unlawful termination, and whether he was entitled to the remedies sought. Holding that sick leave under Section 30 of the Employment Act requires a signed certificate of incapacity and prompt notification, the court found the Claimant's unsigned clinic document, his late presentation of it, and his uncorroborated verbal notice insufficient. His illness narrative was rejected, and he failed to discharge the burden of proof under Section 47(5). The entire claim was dismissed with costs to the Respondent on 12th February 2020.

Key legal issues

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01

Whether the Claimant proved unfair termination on account of illness

Holding

The Claimant failed to discharge the burden of proof under Section 47(5) of the Employment Act; the narrative of termination because of illness was rejected for lack of credible evidence.

Reasoning

The Claimant alleged termination on 3rd January 2017 due to illness from 28th December 2016. Sick leave is a statutory right under Section 30 of the Employment Act, but entitlement requires a signed certificate of incapacity and prompt notification to the employer. The Claimant's certificate from Milele Medical Clinic was unsigned, he presented it only on 3rd January 2017, he notified the employer by word of mouth through a colleague who was not called as a witness, and the Respondent denied having employees named Bonge and Dan. The illness narrative was therefore unsupported.

p. 2
02

Whether the Claimant was entitled to the remedies sought

Holding

All remedies were refused as the entire claim failed and was dismissed with costs to the Respondent.

Reasoning

Having found no unfair termination, the claims for notice pay and compensation fell away. The claim for December 2016 salary was not proved, the Respondent having averred that the Claimant was paid Kshs. 4,850 on 30th December 2016 being salary for December 2016, leave earned less days of absence. The Respondent also portrayed the Claimant as a vexatious litigant with similar suits against former employers. The entire claim was dismissed with costs.

p. 3

Legal principles established

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  • An employee claiming unfair termination bears the burden of proof under Section 47(5) of the Employment Act to substantiate the complaint.
  • A certificate of incapacity relied on for sick leave must be signed as required under Section 30(1) of the Employment Act, and the employer must be notified as soon as reasonably practicable.

Court orders

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  1. 1.Dismissal of the claims for compensation for unfair termination and one month's salary in lieu of notice
  2. 2.Dismissal of the claim for salary for December 2016
  3. 3.Dismissal of the entire claim with costs to the Respondent

Authorities

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Legislation

  • Employment ActSection 30(1) and (2)
  • Employment ActSection 47(5)

Cases cited (3)

  • Obadiah Kebabe Gisore v Rea Vipingo Plantations Ltd
    MLD ELRC Cause No 54 of 2017
  • Obadiah Kebabe Gisore v Teita Tea Estate Ltd
    MLD ELRC Cause No 8 of 2018
  • Obadiah Kebabe Gisore v Umoja Rubber Products Ltd
    MLD ELRC Cause No 52 of 2018
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Obadiah Kebabe Gisore v Umoja Rubber Products Limited [2020] KEELRC 1661 (KLR)", Case Analysis (2020). ELRC Cause (Malindi) - Statement Claim filed 29th May 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1661/eng@2020-02-12

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