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ELRCDismissedNot stated in judgment (memorandum of claim dated March 31, 2016)· [2023] KEELRC 272 (KLR)

Kunyera v Vendramini Education Centre (Employment and Labour Relations Cause 566 of 2016) [2023] KEELRC 272 (KLR)

Employment and Labour Relations Court
3 February 2023
SRStella Rutto
3,767 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, an assistant teacher employed from January 1, 2011, alleged that in 2016, upon disclosing her pregnancy, she was told by the Sister in charge of a policy terminating unmarried pregnant staff, and was required to hand over her class on February 29, 2016 with termination effective March 1, 2016. She claimed Kshs 159,921.76 in notice pay, leave days and compensatory damages for unfair and unlawful termination. The respondent denied terminating her, asserting instead that she absconded duty amid complaints about her performance, and contended it was not a legal entity capable of being sued. Four issues fell for determination: the respondent's legal status, whether termination occurred, its fairness if it did, and entitlement to reliefs. On capacity, the court found the respondent had not proved it was not a legal entity, having produced no evidence of its legal status. On the central issue, the court applied the Black's Law Dictionary definition of termination as complete severance of the employment relationship and section 47(5) of the Employment Act, which places the burden of proving unfair termination on the employee, guided by the Court of Appeal decision in Pius Machafu Isindu. The respondent's correspondence of March 15 and 21, 2016 expressly denied termination and maintained the claimant was still an employee, inviting her to disciplinary hearings she did not attend. The court held the claimant failed to prove termination on a balance of probabilities and found she opted not to continue the employment relationship. The fairness question fell away, the damages and notice pay claims collapsed, and the leave claim failed for want of particularisation. The claim was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Legal capacity of the respondent

Holding

The respondent failed to prove its assertion that it is not a legal entity; it produced no evidence of its legal status.

Reasoning

The respondent contended it lacked capacity to sue or be sued but did not demonstrate its legal status, for instance by producing a certificate of registration or explaining whether it was a trust or association. The court reasoned that if it were not a legal entity it could not have contracted with the claimant, and found the assertion unproved to the requisite standard.

p. 5
02

Whether termination occurred or the claimant absconded

Holding

The claimant failed to prove termination on a balance of probabilities; the correspondence showed the employment relationship subsisted.

Reasoning

The respondent's letters of March 15 and 21, 2016 expressly stated that the claimant had not been terminated and was still an employee, and invited her to a disciplinary hearing. Applying Black's Law Dictionary definition of termination as complete severance, and section 47(5) of the Employment Act placing the burden on the employee, the court found no complete severance was proved and that the claimant opted not to continue the relationship.

p. 7
03

Fairness of termination and entitlement to reliefs

Holding

Having found no termination, the fairness issue fell away and the claims for damages, notice pay and leave collapsed.

Reasoning

Since the foundational finding was that no termination occurred, the question whether termination was fair and unlawful did not arise. The compensatory damages and notice pay claims consequently collapsed, and the leave claim failed for want of particularisation and proof of the specific periods during which leave was allegedly denied.

p. 7

Legal principles established

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  • Under section 47(5) of the Employment Act, the employee bears the burden of proving that an unfair termination or wrongful dismissal occurred, including that there was a complete severance of the employment relationship

Court orders

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  1. 1.Dismissal of the claim in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43(1)
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Civil Procedure Act (Chapter 21, Laws of Kenya)section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Anthony Mkala Chitavi vs Malindi Water & Sewerage Co Limited
    (2013) eKLR
  • CFC Stanbic Bank Limited vs Danson Mwashoko
    (2015) eKLR
  • Andrew Inyolo Abwanza vs Board of Trustees of Pentecostal Assemblies of God & 3 others
    Nairobi HCCC No 69 of 2009
  • Pius Machafu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; Civil Procedure Act referred on capacity issue)

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, "Kunyera v Vendramini Education Centre (Employment and Labour Relations Cause 566 of 2016) [2023] KEELRC 272 (KLR)", Case Analysis (2023). Not stated in judgment (memorandum of claim dated March 31, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/272/eng@2023-02-03

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