Kenya Union of Domestic, Hotels Educational Institutions and Hospital Workers v Hajji Garad Issa [2021] KEELRC 547 (KLR)
The bottom line
#A Kenyan employment court dismissed a worker's unfair dismissal claim because the union and grievant could not prove the dismissal with reliable evidence.
What this practically means
#Executive summary
#Key legal issues
#Proof of dismissal
The court found no evidence to establish the date and circumstances of the alleged dismissal; the grievant's testimony was hearsay and did not identify the respondent with exactness
The grievant did not state the date of termination in testimony, pleaded circumstances that differed from her evidence of being locked out after hospital leave, and produced no hospital records. Termination was communicated by the boss's cousin, which was hearsay. The testimony referred to a watchman, Boss and cousin without identifying the respondent's role, failing the balance of probability.
Proof of contract terms
Although an employment relationship may have existed, the terms and last monthly pay could not be ascertained because pleadings contradicted testimony
The claim as pleaded alleged a last pay of Kshs.10,000 while testimony said the pay remained Kshs.6,000 throughout service. This contradiction made it impossible to ascertain the contract terms or last pay, undermining the quantified claims for underpayment, notice and compensation.
Validity of the trade dispute reference
There was no pleading or evidence of the grievant's membership of the union and no valid trade dispute; the suit was an abuse of court process
The reference under the Labour Relations Act presupposed a trade dispute by a union member that had gone through statutory conciliation. With no proof of membership or a valid dispute, the conciliation process invoked was not properly founded, and service of the memorandum of claim and summons on the respondent was not shown.
Irregularity in service
The record did not show service of the memorandum of claim and summons on the respondent, an irregularity prompting dismissal
Although the respondent did not enter appearance or file a defence, the record did not establish proper service of summons and the memorandum of claim. The court treated this as an irreparable irregularity supporting dismissal of the suit rather than proceeding undefended.
Legal principles established
#- A claimant must prove on a balance of probability the date, circumstances and actor of a dismissal, and hearsay evidence of termination by a third party falls short of that standard
- A union reference requires proof of the grievant's membership and of a valid trade dispute subjected to statutory conciliation; otherwise it is an abuse of process
Court orders
#- 1.The memorandum of claim is dismissed
- 2.The claimant to bear its own costs of the suit
- Jurisdiction invoked
- Reference under the Labour Relations Act, 2007 following a certificate of unresolved dispute (trade dispute conciliation)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels Educational Institutions and Hospital Workers v Hajji Garad Issa [2021] KEELRC 547 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/547/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.