Del Monte Kenya Limited v Tinega (Appeal E003 of 2021) [2022] KEELRC 4100 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Authenticity of the fixed term contract
The court found a high likelihood the Respondent was not party to the fixed term contract dated 27th July, 2017 and that it may have been fabricated to justify termination
The court compared the signatures on the fixed term contract, the verifying affidavit and the witness statement and found stark differences. The appellant's own witness, Martha Atudo (DW1), testified she did not witness the Respondent sign the agreement. This unrebutted evidence undermined the defence that the contract expired on 30th September, 2017.
Burden of proof in unfair termination claims
The learned Magistrate did not err in the treatment of burden of proof; Section 47(5) requires the employee to prove unfair termination, then the employer must justify the grounds
The court held the magistrate properly balanced the evidential burdens. Once the employee lays a case of unlawful termination, the burden of justifying lawful termination shifts to the employer, who must also maintain employment records under Sections 10 and 74 of the Employment Act. Failure to produce records cannot be excused as a shifting of the burden.
Whether the Respondent was still in employment on 17th January, 2018
On the evidence, including payslips for January, April and June 2017 produced outside the alleged fixed term, the Respondent was in employment at the time of termination
The appellant failed to rebut continued employment; she could not produce payslips after September 2017 as none existed. The NSSF statements also showed the appellant had not remitted dues. The respondent's case on balance of probabilities prevailed.
Legal principles established
#- Under Section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination, after which the burden of justifying the termination shifts to the employer
- Sections 10 and 74 of the Employment Act, 2007 obliging employers to keep employment records are mandatory and relying on them does not shift the burden of proof
Court orders
#- 1.Appeal dismissed
- 2.A declaration that the termination of employment of the Respondent by the Appellant was wrongful, unfair and unlawful
- 3.One month's salary in lieu of notice of Kshs.9,880.00
- 4.Twelve months' salary as compensation for unlawful termination of employment (Kshs.9,880.00 x 12 = Kshs.118,560.00), total Kshs.128,440.00
- 5.Costs of the claim and appeal to be borne by the Appellant
- On appeal from
- Magistrates' Court (subordinate court)
- Jurisdiction invoked
- Appeal from subordinate court to the Employment and Labour Relations Court; Sections 3 and 3A of the Employment and Labour Relations Court Act, 2014
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Del Monte Kenya Limited v Tinega (Appeal E003 of 2021) [2022] KEELRC 4100 (KLR)", Case Analysis (2022). Memorandum of Appeal dated 16th July, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4100/eng@2022-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.