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ELRCPartially AllowedCause No 126 of 2018· [2023] KEELRC 232 (KLR)

Abdallah v Twiga Car Hire & Tours Ltd (Cause 126 of 2018) [2023] KEELRC 232 (KLR)

Employment and Labour Relations Court
27 January 2023
SRStella Rutto
6,324 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, a tour guide/driver, sued the respondent tour operator claiming Kshs 3,398,150.00 comprising salary for 13 days worked in January 2018, one month's pay in lieu of notice, severance pay, compensation for public holidays, weekly rest days and overtime, alleging continuous employment from April 6, 1994 until his alleged unlawful termination on January 13, 2018. The respondent denied the claim, contending the claimant resigned in December 2004 and was re-engaged in March 2006, that it never terminated his services, and that he absconded duty after returning from leave. The court framed four issues: continuity of service, termination versus abscondment, fairness of any termination, and entitlement to reliefs. It found the claimant had failed to prove his allegations of forgery against the resignation letter and discharge voucher, which a forensic document examiner authenticated, and held there was a break in service between December 2004 and March 2006. On the strength of the respondent's correspondence with the Labour office, the court found the respondent never terminated the claimant, who failed to discharge his burden under section 47(5) of the Employment Act of proving termination; he had opted to keep away from duty. Consequently, notice pay, severance pay, leave, overtime, rest day and public holiday claims all failed - the leave claim being time-limited by section 28(4), the overtime claims unparticularized and unproved, and severance pay applicable only on redundancy. The court awarded only Kshs 10,833.33 for 13 days worked in January 2018 with interest, and ordered each party to bear its own costs.

Key legal issues

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01

Continuity of service from 1994 to 2018

Holding

There was a break in service from December 29, 2004 to March 2006; service was not continuous for 23 years

Reasoning

The respondent exhibited a resignation letter dated December 29, 2004 and a discharge voucher. The claimant alleged forgery but adduced no evidence to prove it, while the respondent called a forensic document examiner who confirmed the signatures. The claimant also produced no evidence, such as pay slips, for the intervening period. The court therefore found a break in service.

p. 8
02

Termination or abscondment

Holding

The claimant was not terminated; he failed to discharge his burden of proving termination and opted to keep away from duty

Reasoning

The respondent's letters of January 25, 2018 and February 5, 2018 showed it still regarded the claimant as an employee and invited him back. The claimant testified his termination was verbal, with no termination letter, and did not claim he reported back and was turned away. Under section 47(5) of the Employment Act the burden rested on him, and it was not discharged.

p. 10
03

Entitlement to the reliefs sought

Holding

Only salary for 13 days worked in January 2018 was awarded; all other heads failed

Reasoning

Notice pay failed because there was no termination; leave claim failed as leave records showed leave exceeding statutory minimums was taken and claims were limited to 18 months; overtime, rest day and public holiday claims were unparticularized and unproved; severance pay applies only to redundancy.

p. 11

Legal principles established

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  • Allegations of fraud or forgery must be pleaded and strictly proved by the party alleging them
  • Under section 47(5) of the Employment Act, the burden of proving unfair termination or wrongful dismissal rests on the employee
  • The burden of establishing overtime hours, rest days and public holidays worked rests with the employee
  • Annual leave not taken must be claimed within 18 months from the end of the leave earning period

Court orders

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  1. 1.The claim is dismissed substantially
  2. 2.Award to the claimant of salary for 13 days worked in January 2018, being Kshs 10,833.33, subject to interest at court rates from the date of judgment until payment in full
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 47(5)
  • Employment Actsection 43(1)
  • Employment Actsection 45
  • Employment Actsection 28(4)
  • Employment Actsection 40(1)(g)
  • Evidence Actsection 48
  • Evidence Actsection 107
  • Limitation of Actions Actnot specified
  • Constitution of Kenyaarticle 159(2)(d)
  • Constitution of Kenyaarticle 48
  • Civil Procedure Actsection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (10)

  • Samson Owill v Kenya Ports Authority
  • Queenvelle Atieno Owala v Centre for Corporate Governance
    [2013] eKLR
  • Jane Nduta Muchendu v Eastern Deanery Aids Relief Programme
    [2021] eKLR
  • Samson Mbithi Mbane v Inter Security Services Limited
    [2018] eKLR
  • Gitau & another v Republic
    [1989] eKLR
  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Ndolo v Ndolo
    [2008] 1 KLR (G&F) 742
  • Demutila Nanyama Pururmu v Salim Mohamed Salim
    [2021] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment claim)

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, "Abdallah v Twiga Car Hire & Tours Ltd (Cause 126 of 2018) [2023] KEELRC 232 (KLR)", Case Analysis (2023). Cause No 126 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/232/eng@2023-01-27

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