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ELRCDismissedCause No. 61 of 2016· [2020] KEELRC 1773 (KLR)

Joseph Ogembo Mose v Lochab Bros Company Ltd [2020] KEELRC 1773 (KLR)

Employment and Labour Relations Court of Kenya
23 January 2020
MMM. Mbaru
1,464 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee suing for unfair dismissal must first prove the job existed — a shaky recommendation letter and vague memory cost him everything.

What this practically means

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Executive summary

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The claimant sued Lochab Bros Company Ltd alleging he was employed as a night security guard in Narok from January 2012 until 25th September 2014, working 6pm to 6am daily, seven days a week, without rest days, public holiday pay or annual leave. He claimed a Ksh.1,000 wage deduction in August 2014 went unexplained and that his employment was terminated without notice or reasons, seeking notice pay, overtime, public holiday pay, off-duty pay, leave pay, compensation and costs. The respondent denied ever employing the claimant, asserting its only office is in Eldoret, employees are paid through Eco Bank, and the letters the claimant relied on were not issued by it. Its personnel manager, Maraga Otiso Okari, testified that the recommendation letter bore no respondent letterhead, contained spelling errors and bore strange signatures. The court, having questioned the claimant, found significant lapses in his evidence: he could recall only three of seventy-five alleged colleagues, did not summon the alleged still-serving colleague John Bett, and struggled to describe his work area - inconsistent with the attentiveness expected of a security guard. Applying section 47(5) of the Employment Act, the court held the claimant failed to discharge the burden of proving unfair termination, and that the handwritten recommendation letter was not proof of employment under sections 10 and 51. Without proof of employment, assessing the claims would exceed the court's jurisdiction under section 12 of the ELRC Act. The suit was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the claimant proved employment by the respondent

Holding

The claimant failed to prove the employment relationship; the alleged recommendation letter was not proof of employment under sections 10 and 51 of the Employment Act

Reasoning

The respondent denied employing the claimant and did not file work records. The court questioned the claimant and found lapses: he could recall only 3 of 75 colleagues, failed to summon the alleged still-serving colleague John Bett as a witness, and struggled to describe the general work area - traits inconsistent with the attentiveness expected of a security guard. The handwritten recommendation letter did not bear the respondent's letterhead, contained spelling errors and strange signatures.

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02

Burden of proof in unfair termination claims

Holding

The claimant did not discharge the statutory burden of proving unfair termination under section 47(5) of the Employment Act, 2007

Reasoning

Section 47(5) places the burden of proving unfair termination on the employee and the burden of justifying the grounds of termination on the employer. Following Muthaiga Country Club v Kudheiha Workers, the court held that the claimant, whose very employment was challenged, had to establish the employment relationship first; having failed to do so, the claim could not succeed.

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Legal principles established

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  • The burden of proving unfair termination rests on the employee while the burden of justifying the grounds of termination rests on the employer
  • An employer notified of a suit must file the employee's work records or evidence necessary to disprove the allegations

Court orders

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  1. 1.The claims made are dismissed
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Employment ActSection 10
  • Employment ActSection 47(5)
  • Employment ActSection 51
  • Employment and Labour Relations Court ActSection 12

Cases cited (1)

  • Muthaiga Country Club versus Kudheiha Workers
    [2017] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, 2011

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, "Joseph Ogembo Mose v Lochab Bros Company Ltd [2020] KEELRC 1773 (KLR)", Case Analysis (2020). Cause No. 61 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1773/eng@2020-01-23

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