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ELRCDismissedMemorandum of Appeal dated 16th July, 2021· [2022] KEELRC 4100 (KLR)

Del Monte Kenya Limited v Tinega (Appeal E003 of 2021) [2022] KEELRC 4100 (KLR)

Employment and Labour Relations Court
28 September 2022
1,624 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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This was an appeal from a subordinate court in an employment dispute. The appellant employer appealed against a judgment finding that the respondent's termination on 17th January, 2018 was wrongful and unfair. The appellant's case was that the respondent was employed on a fixed term contract signed on 27th July, 2017, effective 1st August, 2017 and expiring on 30th September, 2017, so that he was not an employee on 17th January, 2018 when his services were allegedly terminated. The respondent denied signing the fixed term contract, alleging forgery, relied on payslips for January, April and June 2017 (periods outside the contract) and NSSF statements, and invoked Sections 37, 74 and 47(5) of the Employment Act, 2007. The court identified two determinative issues: the authenticity of the fixed term contract and the burden of proof. Comparing the signatures on the contract, verifying affidavit and witness statement, the court found a high likelihood the respondent was not party to the contract and that it may have been concocted. The appellant's witness did not witness the signing. On burden of proof, the court held the magistrate properly applied Section 47(5): the employee proves unfair termination, then the burden shifts to the employer to justify it, and Sections 10 and 74 impose a genuine duty to keep records. Finding the grounds of appeal unsubstantiated, the court dismissed the appeal, declared the termination wrongful, unfair and unlawful, and awarded one month's salary in lieu of notice (Kshs.9,880.00) and twelve months' compensation (Kshs.118,560.00), with costs of the claim and appeal to the appellant.

Key legal issues

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01

Authenticity of the fixed term contract

Holding

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

Reasoning

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.

p. 3
02

Burden of proof in unfair termination claims

Holding

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

Reasoning

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.

p. 4
03

Whether the Respondent was still in employment on 17th January, 2018

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.A declaration that the termination of employment of the Respondent by the Appellant was wrongful, unfair and unlawful
  3. 3.One month's salary in lieu of notice of Kshs.9,880.00
  4. 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. 5.Costs of the claim and appeal to be borne by the Appellant

Authorities

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Legislation

  • Employment Act, 2007Section 37
  • Employment Act, 2007Section 74
  • Employment Act, 2007Section 10
  • Employment Act, 2007Section 47(5)
  • Employment and Labour Relations Court Act, 2014Sections 3 and 3A
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

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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, "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.