Aristide Marege Nyang’au v Lavington Security Limited [2021] KEELRC 959 (KLR)

The Claimant never pleaded resignation or coercion in his memorandum of claim, and only introduced the coercion claim in a further witness statement filed without leave of the court. His two witness statements were contradictory. He failed to establish any ingredients of coercion, and Section 109 of the Evidence Act placed the burden of proof on him, which he did not discharge. His resignation was therefore held to be voluntary.

Under Section 45(5) of the Employment Act, the employee must prove the fact of dismissal or termination. Since the court found the Claimant resigned voluntarily, he failed to discharge this burden. The court deliberately declined to delve into whether any dismissal was substantively or procedurally fair or whether the redeployment amounted to a substantive change of contract terms.

Compensation under Section 49(1)(c) is only awardable where unfair or wrongful termination is established. The claims for house allowance, public holidays, overtime and unpaid leave are actionable independently of unfair termination, but the Claimant's evidence on these heads was unsatisfactory and largely consisted of bare assertions, so no award was made.

The Claimant had argued that, having disputed voluntarily writing the resignation letter, the Respondent bore the burden of disproving coercion under Section 107 of the Evidence Act. The court held that what would shift was only the evidential burden, and only if the Claimant first discharged his own legal burden under Section 109, which he failed to do.