Jacob Kithimba Mutiso v Swan Carriers Limited [2022] KEELRC 726 (KLR)
The bottom line
#A Kenyan court ruled an employee jailed for a year over a robbery he didn't commit wasn't unfairly dismissed, but won his unpaid salary and leave pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's employment was unlawfully and unfairly terminated
No termination was proved; the claimant's one-year absence following his criminal incarceration amounted to supervening impossibility of performance, and turning him away on return did not amount to unlawful termination
The claimant bore the statutory burden under Section 47(5) of proving unfair termination. He did not receive or prove a letter of termination. His arrest and imprisonment, not the respondent's doing, made performance impossible. When he sought re-engagement a year later, the substratum of the employment had ceased to exist. The claim for compensation and notice pay therefore failed.
Whether the claimant proved malicious prosecution and false imprisonment against the respondent
The claim failed against the respondent; the police, not the employer, were responsible, and the proper party (the Attorney General) was not joined
The Court accepted the criminal court's findings that the prosecution rested on mere suspicion. However, the respondent did not instigate the arrest, charge or imprisonment; the police were solely to blame. Since the claimant did not join the Attorney General, the claim for damages for malicious prosecution and false imprisonment could not succeed against the respondent.
Entitlement to terminal benefits, untaken leave pay and July 2016 salary
Claims for untaken leave (Kshs 12,075) and July 2016 salary (Kshs 12,075) proved on a balance of probability and awarded
Despite failure of the main termination claim, the Court found that the accrued unpaid benefits - leave pay and the outstanding month's salary before the arrest - had been proved on a balance of probability and awarded them, together with a certificate of service.
Legal principles established
#- In complaints of unfair termination or wrongful dismissal, the burden of proving that unfair termination or wrongful dismissal occurred rests on the employee
- Prolonged absence from work caused by events not attributable to the employer may create a supervening impossibility of performance of the employment contract, such that the employment relationship no longer exists when the employee seeks to return
Court orders
#- 1.Judgment entered in favour of the claimant for Kshs. 24,150 with interest at Court rates from date of filing suit till payment in full
- 2.Claimant awarded costs of the suit
- 3.Respondent to provide the claimant with a certificate of service within 30 days of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act); judgment delivered under Article 159(2)(d) and Article 48 of the Constitution and Section 18 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob Kithimba Mutiso v Swan Carriers Limited [2022] KEELRC 726 (KLR)", Case Analysis (2022). ELRC Cause (Nairobi), filed 16th March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/726/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.