Abdillahi Abushiri Mwinyi v Oday Transporters Limited [2021] KEELRC 2221 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Unlawful termination of employment
The claim failed because the Claimant did not adduce evidence to prove unfair termination
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.
Claims for salary, house allowance and prorata leave
Salary and house allowance claims dismissed; prorata leave pay awarded for 7 months
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.
Respondent's counterclaim
Counterclaim dismissed for failure to prove special damages
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs. 12,250 being prorata leave pay for 7 months
- 2.The amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Claimant is entitled to a Certificate of Service
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.