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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 2221 (KLR)

Abdillahi Abushiri Mwinyi v Oday Transporters Limited [2021] KEELRC 2221 (KLR)

Employment and Labour Relations Court
4 February 2021
1,257 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a truck driver only unpaid leave pay because he never testified to prove his unfair termination claim, and dismissed his ex-employer's counterclaim for lacking documentary evidence.

What this practically means

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Executive summary

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The Claimant, a Heavy Commercial Truck Driver employed by the Respondent from February 2013 to September 2013, claimed that his employment was unlawfully terminated on 30th September 2013 after he was injured in a road traffic accident in Jinja-Uganda, allegedly caused by brake failure. He sought notice pay, September 2013 salary, house allowance, prorata leave, 12 months' compensation and a Certificate of Service. The Respondent denied unlawful termination, alleging the Claimant caused an accident while fleeing after hitting a pedestrian, failed to report it, and did not return to work. It counterclaimed Kshs. 3,766,976 as special damages for repairs, loss of income and towing charges. The Court framed three issues: unlawful termination, entitlement to remedies, and the counterclaim. The parties proceeded by written submissions. The Court held that the Claimant, having chosen not to testify, failed to discharge the burden under Section 47(5) of the Employment Act of proving unfair termination, dismissing the notice pay and compensation claims. The house allowance and September salary claims also failed for want of proof. However, absent contrary leave records, the Claimant was awarded prorata leave pay of Kshs. 12,250 for seven months, with interest, plus a Certificate of Service. The Respondent's counterclaim, being founded on special damages, failed for lack of specific documentary evidence. Each party was ordered to bear its own costs. Judgment was delivered virtually at Mombasa on 4th February 2021 owing to COVID-19 restrictions.

Key legal issues

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01

Unlawful termination of employment

Holding

The claim failed because the Claimant did not adduce evidence to prove unfair termination

Reasoning

The Claimant pleaded that his employment was terminated after a road traffic accident in Jinja-Uganda, but chose not to testify or adduce evidence. Section 47(5) of the Employment Act places both the legal and evidential burden of proving unfair termination on the employee, which he failed to discharge. The claims for notice pay and 12 months' compensation were accordingly dismissed.

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02

Claims for salary, house allowance and prorata leave

Holding

Salary and house allowance claims dismissed; prorata leave pay awarded for 7 months

Reasoning

The Claimant did not prove his claim for September 2013 salary nor demonstrate the basis for the house allowance claim. However, in the absence of leave records from the Respondent to the contrary, the Court found the Claimant entitled to prorata leave pay for the seven months worked, quantified at Kshs. 12,250.

p. 3
03

Respondent's counterclaim

Holding

Counterclaim dismissed for failure to prove special damages

Reasoning

The Respondent claimed Kshs. 3,766,976 comprising repair costs, loss of income and towing charges, all in the nature of special damages. Special damages must be specifically pleaded and proved with documentary evidence. The Respondent presented no such evidence, so the counterclaim failed in its entirety.

p. 3

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee under Section 47(5) of the Employment Act
  • A counterclaim founded on special damages must be supported by specific documentary evidence

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 12,250 being prorata leave pay for 7 months
  2. 2.The amount to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant is entitled to a Certificate of Service
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly stated in the judgment)

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, "Abdillahi Abushiri Mwinyi v Oday Transporters Limited [2021] KEELRC 2221 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2221/eng@2021-02-04

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