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ELRCDismissedNot stated in judgment· [2021] KEELRC 1908 (KLR)

Samwel Juma Ojwang v Equator Bottlers Limited [2021] KEELRC 1908 (KLR)

Employment and Labour Relations Court
7 April 2021
RSRadido Stephen
608 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a worker's unfair termination claim because he could not prove he was fired rather than his fixed-term contract simply expiring.

What this practically means

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Executive summary

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The claimant, Samwel Juma Ojwang, sued Equator Bottlers Ltd alleging that his employment was verbally terminated without justifiable cause and sought salary in lieu of notice, compensation and three years' accrued leave. The issues before the Employment and Labour Relations Court were whether the claimant was a permanent employee, whether his termination was fair, and whether the contract was terminated or simply lapsed. The claimant did not produce a contract; the respondent produced a fixed-term contract dated 1 December 2012 for three months and a renewal dated 2 July 2015 running to 30 September 2015. The court held the claimant was a fixed-term, not permanent, employee. Days before the contract's expiry, the respondent issued a show-cause notice over overloading of a truck with 150 crates of soda; the claimant replied, took five days' leave expiring on 30 September 2015, cleared on 1 October 2015 and was paid terminal dues on 7 October 2015. Applying section 47(5) of the Employment Act, 2007, the court found the claimant bore the burden of proving unfair termination and failed, as he never disclosed who allegedly dismissed him. The court was satisfied the contract lapsed by effluxion of time, so notice pay and compensation were unavailable. The accrued leave claim also failed, as records showed 6.8 leave days were commuted and paid. The Cause was dismissed with costs.

Key legal issues

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01

Whether the claimant was a permanent employee

Holding

The claimant was not a permanent employee; he was on fixed-term renewal contracts

Reasoning

The claimant produced no contract. The respondent produced a fixed-term contract dated 1 December 2012 for 3 months and a renewal letter dated 2 July 2015 running to 30 September 2015, establishing fixed-term engagements rather than permanent employment.

p. 1
02

Whether there was unfair termination

Holding

No unfair termination; the contract lapsed by effluxion of time on 30 September 2015

Reasoning

The claimant alleged verbal dismissal but did not disclose who told him his services were no longer required, failing to discharge his burden under section 47(5). The clearance form dated 1 October 2015 corroborated that the contract simply expired on 30 September 2015.

p. 2

Legal principles established

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  • Under section 47(5) of the Employment Act, 2007, the employee bears the burden of proving that unfair termination of employment occurred

Court orders

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  1. 1.The Cause is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a Cause under the Employment Act, 2007 (statutory basis inferred from the judgment's application of section 47(5) of the Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samwel Juma Ojwang v Equator Bottlers Limited [2021] KEELRC 1908 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1908/eng@2021-04-07

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