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ELRCDismissedCause No 379 of 2018· [2021] KEELRC 2229 (KLR)

Kennedy Odhiambo Anyiko v Mini Bakeries (Msa) Limited [2021] KEELRC 2229 (KLR)

Employment and Labour Relations Court
4 February 2021
LNLINNET NDOLO
980 words in judgment
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The bottom line

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A Kenyan court threw out a worker's unfair dismissal claim because he couldn't prove his case with consistent, supporting facts.

What this practically means

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Executive summary

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The Claimant, Kennedy Odhiambo Anyiko, sued his former employer, Mini Bakeries (MSA) Limited, claiming he was employed on 20th April 2012 at a daily wage of Kshs. 896 and that his employment was terminated without notice on 11th November 2016 without justifiable cause or due procedure. He sought one month's salary in lieu of notice, unpaid annual leave for four years, twelve months' salary as compensation, service pay, costs and interest. The Respondent denied the claim, contending the Claimant was a casual employee engaged from July 2013 on an intermittent basis who left employment at his own instance and never returned. The matter was dispensed with by written pleadings and submissions. Framing two issues - whether the Claimant proved unlawful termination and whether he was entitled to the remedies sought - the Court held that under Section 47(5) of the Employment Act an employee bears the primary burden of laying facts supporting an allegation of unfair termination before the employer is put on its defence. The Claimant gave no details of the circumstances of the termination and gave inconsistent dates (11th November 2016 in the claim versus 5th November 2016 in the demand letter), which the Court held defeated discharge of the evidential burden. The Court also held that attacking a weak defence cannot save an unsubstantiated claim. The claims for leave and service pay also failed for want of evidence. The entire claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Burden of proof in unfair termination claims under Section 47(5) of the Employment Act

Holding

The employee must first lay facts supporting the allegation of unfair termination before the employer is called upon to justify the termination; the Claimant failed to do so.

Reasoning

Section 47(5) places the burden of proving unfair termination on the employee and the burden of justifying the grounds on the employer. The Claimant merely asserted unlawful termination without giving details of the circumstances. He also gave inconsistent dates of termination (5th versus 11th November 2016) without explanation, meaning he did not discharge the evidential burden.

p. 2
02

Effect of prevarication on the date of termination

Holding

An employee who prevaricates on the date of termination has not discharged the evidential burden under Section 47(5).

Reasoning

The Memorandum of Claim pleaded termination on 11th November 2016 while the demand letter stated 5th November 2016. No explanation was offered for the discrepancy. Relying on its earlier decision in Bakari Abdalla Mwangazi v Kwale International Sugar Company Limited, the Court held such prevarication fatal to the claim.

p. 2
03

Whether the Respondent's casual-employee defence could sustain the claim

Holding

A weak defence cannot save an unsubstantiated claim; the Claimant's attack on the defence did not establish his own case.

Reasoning

The Claimant's submissions attacked the Respondent's defence that he was a casual employee working intermittently. The Court held the primary duty was to first establish unlawful termination; attacking a weak defence without proving one's own claim cannot succeed.

p. 2

Legal principles established

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  • An employee alleging unlawful termination bears the primary responsibility of laying facts before the Court; only then is the employer put on its defence to justify the grounds of termination.
  • A weak defence does not save an unsubstantiated claim.

Court orders

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  1. 1.Dismissal of the claims for compensation and notice pay
  2. 2.Dismissal of the claims for leave and service pay
  3. 3.Dismissal of the entire claim
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 47(5)

Cases cited (2)

  • Premier Construction Limited v Josephat Bwire & 5 others
    [2017] eKLR
  • Bakari Abdalla Mwangazi v Kwale International Sugar Company Limited
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Section 47(5) applied)

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, "Kennedy Odhiambo Anyiko v Mini Bakeries (Msa) Limited [2021] KEELRC 2229 (KLR)", Case Analysis (2021). Cause No 379 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2229/eng@2021-02-04

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