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ELRCDismissed· [2022] KEELRC 1531 (KLR)

Nasimolo v Mustafa (Cause 275 of 2017) [2022] KEELRC 1531 (KLR)

Employment and Labour Relations Court
8 June 2022
AJAbuodha J.N
1,402 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent (sole proprietor of Kitale Glass and Hardware), sued for unfair termination and terminal benefits, alleging he was a general worker employed from November 23, 2007 and summarily dismissed on September 18, 2013 on unfounded allegations of theft, without a disciplinary hearing or police report, and that the dismissal was in retaliation for seeking compensation for a workplace injury. The respondent maintained the claimant was engaged as a watchman under a letter of appointment dated November 23, 2010, was implicated in theft of timber at the premises, absconded duty, and was summarily dismissed in accordance with clause 7 of the appointment letter and section 44(4) of the Employment Act; the respondent offered Ksh.18,000/= computed by the County Labour Officer on humanitarian grounds. At hearing, the claimant's evidence contained material contradictions: he claimed employment from 2007 whereas his own letter of appointment showed November 23, 2010; he claimed to be a general worker whereas the letter showed watchman; and he claimed a 2011 injury at Mt. Elgon Hospital without producing a treatment report for that date. The court found the claimant was not a witness for truth and that the most probable explanation was that he absconded after the theft fearing arrest. Applying the principle that the burden of proving unfair termination lies on the employee, the court dismissed the claim but ordered payment of the Ksh.18,000/= offered, conditional on the claimant returning the respondent's property. The suit was dismissed with no order as to costs.

Key legal issues

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01

Burden of proof in unfair termination claims

Holding

The burden lies on the employee to prove unfair termination, and the claimant failed to discharge it

Reasoning

The court held that the claimant's allegations of employment from 2007, employment as a general worker, and a workplace injury were contradicted by his own documents, including the letter of appointment dated November 23, 2010 showing him as a watchman and the absence of any treatment report for the alleged 2011 injury. These inconsistencies led the court to find he was not a witness for truth, and the most probable explanation was that he absconded duty after the theft.

p. 3
02

Whether the summary dismissal was substantively and procedurally fair

Holding

The dismissal was in accordance with the contract and section 44(4) of the Employment Act; the claimant absconded and refused to attend, so no procedural unfairness was established

Reasoning

The court found the claimant absconded duty after the theft incident fearing arrest, and refused the respondent's summons to appear, thus precluding a disciplinary hearing. The dismissal letter dated September 18, 2013 cited abscondment. The claimant's own contradictions about his employment date and role undermined his claim of dismissal on unfounded theft allegations.

p. 3

Legal principles established

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  • In a claim for unfair termination, the burden of proof lies on the employee
  • A party who alleges facts must prove them to the required standard of proof

Court orders

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  1. 1.The suit is dismissed with no order as to costs
  2. 2.The respondent to pay the claimant Ksh.18,000/= as assessed by the County Labour Office, provided the claimant returns the respondent's property in his possession and clears with the respondent

Authorities

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Legislation

  • Employment Actsection 44(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination and terminal benefits)

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, "Nasimolo v Mustafa (Cause 275 of 2017) [2022] KEELRC 1531 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1531/eng@2022-06-08

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