Rotich Victor v Mogogosiek Tea Factory Co Ltd [2022] KEELRC 971 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Nature of the claimant's employment
The claimant worked for the respondent from January 2010; his casual employment converted to permanent employment up to February 2011 by dint of section 37 of the Employment Act, but from June 2011 to October 2017 he was engaged under lawful 3-month fixed-term seasonal contracts
The claimant's NSSF statement showed employment from January 2010, rebutting the respondent's claim that employment began in 2014. The employer, as custodian of employment records under sections 74 and 10(7) of the Employment Act, deliberately withheld records. However, after June 2011 the NSSF statement showed engagements punctuated by breaks, consistent with lawful seasonal contracts permitted under Clause 22 of the CBA.
Whether the claimant was unlawfully dismissed
No - the claimant failed to discharge the burden of proving unfair dismissal; the last 3-month seasonal contract lapsed in October 2017 and expired automatically
Under section 47(5) of the Employment Act the burden of proving unfair or wrongful dismissal is on the employee. The claimant adduced no evidence rebutting the seasonal contract allegation, called no witness, and did not explain the circumstances of termination. The court preferred the employer's evidence that the contract expired by effluxion of time.
Entitlement to reliefs
All reliefs declined because the claimant failed to prove he was wrongfully dismissed or worked up to January 2018
Since the court found the contract expired automatically and was not wrongfully terminated, the notice pay claim failed for conflict between pleadings and evidence, leave lacked particulars and was partly time barred under the limitation period of 3 years, service pay was barred by section 35(6) of the Employment Act given NSSF contributions, and reinstatement, compensation and constitutional damages had no basis.
Legal principles established
#- Where employment records are in the custody of the employer, the employer must produce them to disprove an employee's allegation; failure amounts to deliberate concealment and the employee's evidence may be accepted on a balance of probability
- Continuous casual employment exceeding the statutory threshold converts to permanent employment by dint of section 37 of the Employment Act
- The burden of proving unfair or wrongful dismissal lies on the employee under section 47(5) of the Employment Act
- A fixed-term contract that expires by effluxion of time is not an unlawful dismissal
Court orders
#- 1.The suit was dismissed
- 2.Each party to bear its own costs (suit dismissed with no costs)
- Jurisdiction invoked
- Employment and Labour Relations Court established under the Constitution and the Employment and Labour Relations Act; suit filed as a cause under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich Victor v Mogogosiek Tea Factory Co Ltd [2022] KEELRC 971 (KLR)", Case Analysis (2022). Cause No. 108 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/971/eng@2022-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.