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ELRCDismissedNot stated in judgment· [2021] KEELRC 894 (KLR)

Jacob Muthui Ivia v Pembe Flour Mills [2021] KEELRC 894 (KLR)

Employment and Labour Relations Court
30 September 2021
MNMathews N. Nduma
1,237 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed a worker's unfair termination suit because he couldn't prove who terminated his job or how.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent at Pembe Flour Mills Limited, sued seeking a declaration that his dismissal was unlawful and unfair, together with compensation, punitive and aggravated damages, a fine for failure to comply with mandatory statutory provisions, and terminal benefits premised on a Collective Bargaining Agreement between the Kenya Union of Commercial Food and Allied Workers Union and the respondent. The claimant asserted that after two fixed term contracts expired in September 2015 he continued working without a written contract, becoming a permanent employee, until termination in March 2016 without notice or valid reason. The respondent asserted the claimant was employed on three-month fixed term contracts renewed depending on availability of raw materials, the last of which ended on 29/2/2016, and that following conciliation by the Ministry of Labour it paid one month's salary in lieu of notice in December 2016. The parties proceeded by affidavit evidence and written submissions. The court framed two issues: whether the employment was unlawfully terminated or ended on effluxion of time, and entitlement to reliefs. The court held that the claimant bore the burden under Section 47(5) of proving wrongful termination but did not explain how or by whom his employment was terminated, while the respondent demonstrated payment of notice pay. The claimant's own pay slips contradicted his overtime and leave claims and showed statutory deductions. His fine claim under Section 51(3) was held misconceived as the Court lacks criminal jurisdiction. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the claimant's employment was unlawfully terminated or ended on effluxion of time

Holding

The claimant failed to prove unlawful or unfair termination; the employment ended by effluxion of time with one month's salary in lieu of notice paid following conciliation

Reasoning

The claimant served on fixed term contracts ending September 2015 and thereafter without a written contract to February 2016. He did not explain how or by whom employment was terminated, failing his Section 47(5) burden. The respondent showed a December 2016 payslip of Kshs 16,114 as one month's salary in lieu of notice following conciliation led by the Ministry of Labour. The claimant's testimony was contradicted by his own documentary evidence and deemed not candid and credible.

p. 2
02

Whether the claimant was entitled to the reliefs sought under the CBA

Holding

No relief was granted; overtime and leave claims were contradicted by the pay slips, and statutory dues were shown as deducted

Reasoning

The claimant's own pay slips showed monthly overtime payment at 1.5 times the hourly rate and payment for untaken leave days in February 2016, September 2015 and April 2015. Deductions of PAYE, NSSF and NHIF appeared on the slips and no evidence showed they were unremitted. Having failed to prove unlawful termination, the claimant failed to prove entitlement to any relief, and the suit was dismissed.

p. 2

Legal principles established

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  • Under Section 47(5) of the Employment Act the claimant bears the burden of demonstrating wrongful termination, whereafter the respondent bears the evidential burden of justifying the termination under Sections 43 and 45
  • The Employment and Labour Relations Court has no criminal jurisdiction to impose fines under the Employment Act

Court orders

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  1. 1.The suit is dismissed with no order as to costs

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 43(1) and (2)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 51(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (original employment dispute; court noted criminal jurisdiction under the Employment Act lies with the magistracy)

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, "Jacob Muthui Ivia v Pembe Flour Mills [2021] KEELRC 894 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/894/eng@2021-09-30

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