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ELRCDismissedEmployment and Labour Relations Claim filed 2nd November, 2016 (number not stated in judgment)· [2022] KEELRC 702 (KLR)

Sara Mukabana Muka v Graduate Pool Placement Services Limited [2022] KEELRC 702 (KLR)

Employment and Labour Relations Court
17 February 2022
MNMathews N. Nduma
1,624 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 she couldn't prove she was fired—the evidence showed she abandoned the job.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a general worker from September 2009 until 29th August 2015, sued seeking a declaration that her dismissal was unlawful and unfair, together with terminal benefits: one month's salary in lieu of notice, house allowance for six years, overtime pay for weekdays and weekends, payment in lieu of untaken leave days, pay for public holidays worked, and compensation for unlawful dismissal. She testified she was verbally dismissed on 29th August 2015 by Mr. Jackson Muia, a supervisor at Kenafric Industries, a client of the respondent where she had been deployed, after she asked for more staff in the chicklets packing section. The respondent's witness, Benjamin Muia, testified that the claimant absconded after her maternity leave, was reinstated, later objected to deployment at Kenafric, and ultimately left employment without notice; Jackson Muia was not the respondent's employee and had no authority to dismiss. The court framed three issues: whether the claimant absconded or was dismissed; if dismissed, whether for a valid reason and fair procedure; and what reliefs were due. Applying Sections 107 and 108 of the Evidence Act and Sections 41, 43 and 45 of the Employment Act, the court found the conflicting versions mutually destructive but preferred the respondent's account, holding that the deployment to Kenafric was genuine and the claimant absconded. All reliefs failed for want of proof. The entire suit was dismissed with no order as to costs, given the claimant's long and admittedly good service.

Key legal issues

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01

Whether the claimant was dismissed or absconded

Holding

The claimant absconded work; she was not dismissed by the respondent or by Jackson Muia who had no authority to dismiss her

Reasoning

The two versions were mutually destructive. The court found the respondent's narrative more credible because it had reinstated the claimant after she overstayed maternity leave without permission, showing no intention to terminate her employment. The deployment to Kenafric was genuine and the claimant's unhappiness with the station led her to abscond.

p. 2
02

Validity of the dismissal

Holding

Not reached against the respondent because no dismissal was established

Reasoning

Since the claimant failed to prove termination, the burden never shifted to the respondent under Sections 41, 43 and 45 of the Employment Act to prove a valid reason and fair procedure.

p. 3
03

Entitlement to reliefs

Holding

All reliefs refused for lack of proof

Reasoning

Having found the claimant absconded, notice pay and compensation fell away. The claims for house allowance, overtime and leave failed because the claimant tendered no evidence of entitlement, and the primary onus of proving the rights were not enjoyed rested on her.

p. 3

Legal principles established

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  • The claimant bears the onus of proving termination on a balance of probabilities, after which the burden shifts to the employer to justify the termination under Sections 41, 43 and 45 of the Employment Act
  • Where the primary onus is discharged, the burden shifts to the employer to demonstrate leave was granted or overtime/house allowance paid

Court orders

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  1. 1.The entire suit by the claimant is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Evidence ActSections 107 and 108
  • Employment Act, 2007Sections 41, 43 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Sara Mukabana Muka v Graduate Pool Placement Services Limited [2022] KEELRC 702 (KLR)", Case Analysis (2022). Employment and Labour Relations Claim filed 2nd November, 2016 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/702/eng@2022-02-17

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