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ELRCDismissedCause No. 57 of 2019

Caleb Kipkorir Cheruiyot v Kaisugu Tea Limited [2021] KEELRC 1497 (KLR)

Employment and Labour Relations Court of Kenya at Kericho
27 January 2021
2,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a tea worker's unfair dismissal claim because 10 days of unexcused absence justified summary dismissal, though he must still get a certificate of service.

What this practically means

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Executive summary

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The claimant sued Kaisugu Tea Limited alleging he was employed from 4 May 2017 to sort tea leaves at Ksh.28,000 per month, that he developed respiratory and cardio-vascular complications from inhaling tea dust, and that after lodging a complaint with Occupational Safety and Health his employment was terminated without notice or hearing. He sought general damages for wrongful termination, underpayment, unpaid leave, unpaid salary, overtime, notice pay, aggravated and punitive damages, statutory remittances, a certificate of service and costs. The respondent denied the employment relationship, asserted the claimant worked for less than a month from July 2019 and was summarily dismissed for absenteeism, contended the medical documents were forgeries, and argued the suit was against a non-existent entity since it is Kaisugu Limited. The court, invoking Order 1 Rule 9 of the Civil Procedure Rules as applied in William Kiprono Towett v Farmland Aviation Ltd, held the non-joinder or misdescription of parties could not defeat the suit and proceeded to the merits. It found the DOSH forms did not constitute a medical certificate under section 34 of the Employment Act, the claimant was absent without permission for 10 days, and the summary dismissal with notice to the union was justified under sections 44 and 41. NSSF and NHIF statements were held not to prove employment status. The claim was dismissed in its entirety except that the respondent was ordered to issue a Certificate of Service under section 51 of the Employment Act, with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant was an employee of the respondent and whether suing a non-existent entity (Kaisugu Tea Limited instead of Kaisugu Limited) defeated the suit
  2. 2.Whether the termination of the claimant's employment by summary dismissal for absenteeism was justified
  3. 3.Whether the claimant was entitled to the terminal dues and damages claimed: general damages, underpayment, unpaid leave, notice pay, unpaid August 2019 salary, overtime, NSSF/NHIF/PAYE, and a certificate of service

Key legal issues

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01

Whether suing Kaisugu Tea Limited instead of Kaisugu Limited defeated the suit

Holding

Non-joinder or misdescription of parties does not defeat a suit; the court proceeded to address the merits

Reasoning

The respondent argued the claim was lodged against a non-existent entity. The court invoked Order 1 Rule 9 of the Civil Procedure Rules, following William Kiprono Towett v Farmland Aviation Ltd, holding that misjoinder or non-joinder cannot defeat a suit. Since the respondent had filed a defence and the matter went to full trial, the court addressed the merits of the issues in dispute.

p. 3
02

Whether the summary dismissal for absenteeism was justified

Holding

The summary dismissal was justified under sections 44 and 41 of the Employment Act

Reasoning

The claimant was absent from work for 10 days without permission to seek medical attention. The DOSH forms he filed did not amount to the medical certificate contemplated under section 34 of the Act and could not excuse the absence. He was issued with notice of summary dismissal, the union and shop steward were informed, and his dues were paid, so there was good cause for termination.

p. 3
03

Whether NSSF and NHIF statements prove employment from May 2017

Holding

Statutory statements are not evidence of employment status; the employer's records are primary evidence

Reasoning

The claimant relied on NSSF, NHIF and PAYE statements to assert employment from 4 May 2017. The court held these only record the last employer and do not confer employment status or serve as an employment contract. The claimant's own payment statement showed a basic wage of Ksh.12,113 for July 2019, which, coupled with the defence evidence, established employment for less than a month. The underpayment and leave claims for two years were thus exaggerations.

p. 4

Legal principles established

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  • Misjoinder or non-joinder of parties cannot be a ground to defeat a suit; the court may deal with the matter in controversy regarding the parties actually before it (Order 1 Rule 9 of the Civil Procedure Rules, 2010, as adopted from William Kiprono Towett & 1597 Others v Farmland Aviation Ltd)
  • Absence from work without permission or good cause attracts summary dismissal under section 44(4)(a) of the Employment Act, and failure to notify the employer of sickness in good time amounts to absconding
  • NSSF and NHIF statements are not evidence of employment status; the employer's records are the primary evidence of employment
  • An employee summarily dismissed for good cause is not entitled to notice pay or compensation but is entitled to a Certificate of Service under section 51 of the Employment Act

Court orders

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  1. 1.The claim is dismissed as being without merit
  2. 2.The respondent shall issue the claimant with a Certificate of Service pursuant to section 51 of the Employment Act, 2007
  3. 3.Each party shall bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and labour relations dispute before the Employment and Labour Relations Court under the Employment Act, 2007

Relief refused

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General damages for wrongful termination (Ksh.336,000)

Termination by summary dismissal was justified for absence from work without permission

p. 3

Underpayment from May 2017 to July 2019 (Ksh.413,062)

Employment was for less than a month; NSSF and NHIF statements are not evidence of employment

p. 3

Unpaid leave for 2 years (Ksh.39,200)

The claimant worked for less than a month; the claim is contrary to section 28 of the Employment Act

p. 4

Unpaid salary for August 2019 (Ksh.28,000)

The claimant was absent from duty without due cause and was summarily dismissed; only payment for 21 days worked was established and not challenged

p. 4

Unpaid overtime for 2 years (Ksh.988,424)

Claim lacks foundation as employment lasted less than a month

Notice pay and compensation

Notice pay and compensation are not payable where termination is for good cause

p. 4

Aggravated and punitive damages

Claim dismissed as termination was justified

Payment of NSSF, NHIF, PAYE

The respondent's payment statement showed statutory dues were deducted in compliance with the law

p. 4

Costs

Each party shall bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Order 1 Rule 9 of the Civil Procedure Rules (2010) makes it abundantly clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit.
p. 3Non-joinder and misdescription of parties
NSSF and NHIF statements are not evidence of employment.
p. 3Proof of employment status
The employer is the custodian of work records pursuant to section 10(6) and (7) of the Act. Where there is a dispute as to employment status, the records of the employer are the primary evidence.
p. 4Burden of proof on employment records
Even where the claimant may have been unwell and required urgent medical attention and to be absent from duty, the DOSH forms filed with the Memorandum of Claim are not similar to the medical certificate contemplated under section 34 of the Act.
p. 3Medical leave and absence without leave
Accordingly, the claim herein is found without merit and is hereby dismissed save the respondent shall issue the claimant with a Certificate of Service pursuant to section 51 of the Employment Act, 2007. Each party shall bear own costs.
p. 4Final orders and disposition

Issues in the judgment

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minor

Contradiction on the commencement date of employment between the pleading narrative and the respondent's testimony

minor

Internal date inconsistency in the judgment on the commencement of employment

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, "Caleb Kipkorir Cheruiyot v Kaisugu Tea Limited [2021] KEELRC 1497 (KLR)", Case Analysis (2021). Cause No. 57 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1497/eng@2021-01-27

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