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ELRCDismissedCause No. 2570 of 2016· [2021] KEELRC 1490 (KLR)

Samuel Nyabeta Gesacho v Laban Munene [2021] KEELRC 1490 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
13 May 2021
MMM. Mbaru
1,075 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim collapsed because the worker's court documents said one month of employment while his testimony claimed six years — accuracy in pleadings is everything.

What this practically means

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Executive summary

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The claimant sued the respondent, a doctor who had employed him as a night guard at his Karen residence, claiming unpaid service pay, leave pay, house allowance, underpayment, redundancy compensation and damages for unfair termination. The claimant pleaded employment from 11th October 2016 to 15th November 2016, but testified that he had worked for 6 years from 11th October 2010 until his employment ended after he refused to work both day and night shifts due to family commitments. The respondent did not attend the hearing despite service and filed a defence of mere denial, asserting no employment relationship existed as pleaded. The court found the pleadings and evidence at great variance and applied the principle that parties are bound by their pleadings, citing Boniface Kinyua Kathuri v David Munyoki and Philmark Systems Co. Ltd v Andermore Enterprises. No application to amend the pleadings had been made orally or in writing, and the court held that pleadings cannot be amended during the hearing or in submissions, as this would negate the respondent's right to a fair hearing. The employment period was therefore taken as the pleaded one month only. Each head of claim failed: gratuity was not due without a contract and the pleaded period was not 6 years; notice pay was not due since November wages were paid via Mpesa; leave, house allowance and underpayment claims rested on fatal pleadings; and severance pay relates only to redundancy under section 40 of the Employment Act, 2007, which was not pleaded. The claim was dismissed with each party bearing own costs.

Key legal issues

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01

Variance between pleadings and evidence on the employment period

Holding

The claimant was bound by his pleaded case of employment from 11th October 2016 to 15th November 2016; his testimony of 6 years of service could not stand, rendering the claims fatal

Reasoning

The court found the pleadings and evidence at great variance: the claimant pleaded a one-month employment but testified to 6 years. Citing authority that parties are bound by their pleadings, and noting no application to amend was made orally or in writing, the court held the pleaded one-month period governs. Allowing amendment at hearing or in submissions would negate the fair-hearing rights of the respondent. The variance rendered the claims fatal.

p. 2
02

Entitlement to the various unpaid claims

Holding

Gratuity, notice pay, leave pay, house allowance, underpayment and severance claims all failed - the gratuity for want of contract and the short pleaded period, severance because redundancy under section 40 of the Employment Act was not pleaded, and notice pay because November wages were paid via Mpesa

Reasoning

The court dealt with each head of claim against the pleaded one-month employment. Gratuity had no contractual basis and the pleaded period was not 6 years. Severance pay relates only to redundancy under section 40 of the Employment Act, 2007, which was not pleaded. Leave, house allowance and underpayment claims were premised on the fatal pleadings. The entire claim was dismissed with each party bearing own costs.

p. 2

Legal principles established

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  • Parties are bound by their pleadings and cannot raise a different or fresh case without due amendment; a claim or defence not pleaded cannot be adjudicated upon
  • Pleadings cannot be amended during the hearing or in written submissions

Court orders

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  1. 1.The claim as filed is dismissed
  2. 2.Each party shall bear own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes

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, "Samuel Nyabeta Gesacho v Laban Munene [2021] KEELRC 1490 (KLR)", Case Analysis (2021). Cause No. 2570 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1490/eng@2021-05-13

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