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ELRCDismissedCause No 1930 of 2017· [2023] KEELRC 236 (KLR)

Kingoo v Nairobi Plastics Limited (Cause 1930 of 2017) [2023] KEELRC 236 (KLR)

Employment and Labour Relations Court
2 February 2023
JGJacob Gakeri
3,448 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an unfair termination claim because the employee could not prove his case with credible facts and documents.

What this practically means

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Executive summary

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The claimant sued alleging unfair termination of employment on May 2, 2017, claiming he had worked for the respondent since 1996 as a casual machine operator and later as a permanent employee. He sought compensation for wrongful termination, salary in lieu of notice, service pay, gratuity, general, aggravated and exemplary damages, and a certificate of service. The respondent denied employing him as alleged, asserting a six-month renewable fixed-term contract dated November 1, 2016 which lapsed by effluxion of time on April 30, 2017, with all dues of Kshs 17,870/= paid and a clearance certificate signed. The court framed three issues: the date and nature of employment, whether termination was unfair, and entitlement to reliefs. Relying on the NSSF statement, the court found employment commenced around April 2003/2004 and was permanent, the respondent having adduced no evidence of the employment's nature before November 1, 2016. It declined to rely on the photocopied 2016 contract, whose signatures the claimant disowned and whose dates bore unauthenticated, uncounter-signed alterations. On unfair termination, the court held the claimant bore the burden under section 47(5) of the Employment Act and failed: his pleadings and evidence did not disclose the factual circumstances of the alleged termination, and the court found him untruthful. All monetary reliefs and damages were declined for want of proof; service pay was barred by section 35(6)(d) as he was an NSSF member. The suit was dismissed with each party bearing their own costs, but the respondent was ordered to issue a certificate of service within 30 days.

Key legal issues

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01

Date and nature of the claimant's employment

Holding

Employment commenced around April 2003/2004 and was permanent employment; the alleged 1996 start and the November 1, 2016 fixed-term contract were not proved

Reasoning

The NSSF statement showed registration on April 7, 2004 with contributions commencing then, contradicting the claimant's 1996 assertion for which he produced no documents. The respondent's witness adduced no evidence of the employment's nature before November 1, 2016. Applying section 10(7) of the Employment Act, the respondent bore the burden of proving contractual terms where no written contract was produced; failing that, the court found permanent employment.

p. 4
02

Authenticity of the November 1, 2016 employment agreement

Holding

The court found it unsafe to rely on the photocopied contract bearing disowned signatures and unauthenticated alterations

Reasoning

The claimant disowned the signatures on the contract and clearance certificate. All dates on the agreement, including the start date and duration, had been altered by hand and none counter-signed. The claimant was not given a copy, leaving nothing to compare for authenticity, and the respondent had no proof he received Kshs 17,870/=. A copy of a disputed, altered document could not safely found findings.

p. 5
03

Whether termination of employment was unfair

Holding

Claimant failed on a balance of probabilities to prove that an unfair or wrongful termination occurred

Reasoning

Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee. The claimant's pleadings and evidence were reticent on the factual circumstances of the alleged May 2, 2017 termination - who informed him, when, and what he did. He could not confirm he was at work on that date. The respondent's case was that the contract lapsed by effluxion of time. The court found the claimant untruthful in failing to disclose the factual context.

p. 7
04

Entitlement to reliefs

Holding

All monetary reliefs and damages were declined for want of proof; only a certificate of service was granted

Reasoning

Having failed to prove unfair termination, the claimant could not obtain the section 49(1)(c) compensation or a declaration. Service pay was barred by section 35(6)(d) as an NSSF member; notice pay and gratuity lacked evidential or contractual basis; general, aggravated and exemplary damages were unsupported by evidence of specific violations and loss; special damages were neither specified nor proved.

p. 8

Legal principles established

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  • For a termination to pass muster it must be both substantively justified and procedurally fair
  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment is on the employer
  • Under section 47(5) of the Employment Act the employee bears the burden of proving unfair termination while the employer must justify the grounds for termination
  • A claimant must at least plead the factual circumstances of the alleged termination to demonstrate non-compliance with the Employment Act
  • Special damages must be specifically pleaded and proved

Court orders

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  1. 1.The suit is dismissed.
  2. 2.The respondent shall issue a certificate of service within 30 days from the date of the judgment.
  3. 3.Each party to bear their own costs.

Authorities

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Legislation

  • Employment Act, 2007section 45 (incl. 45(2), 45(4)(b))
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 35(6)(d)
  • Employment Act, 2007section 10(7)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (11)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • National Bank of Kenya Ltd v Samuel Nguru Mutonya
    (2019) eKLR
  • Ayub Imbira V Teachers Service Commission
    (2018) eKLR
  • Kenfreight (EA) Ltd V Benson K. Nguti
    (2016) eKLR
  • Amatsi Water Services Co. Ltd V Francis Shire Chachi
    (2018) eKLR
  • Rajab Barasa & 4 others V Kenya Meat Commission
    (2021) eKLR
  • Margaret A. Achieng V National Water Conservation & Pipeline Corporation
    (2014) eKLR
  • Alexander Mutua V Haggai Multi-Cargo Handling Services Ltd
    (2014) eKLR
  • Coastal Bottlers Ltd V Kimathi Mithika
    (2018) eKLR
  • Kenafric Industries Ltd v John Gitonga Njeru
    (2016) eKLR
  • Naima Khamis v Oxford University Press EA Ltd
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kingoo v Nairobi Plastics Limited (Cause 1930 of 2017) [2023] KEELRC 236 (KLR)", Case Analysis (2023). Cause No 1930 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/236/eng@2023-02-02

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