Nzeve v Ancarta Construction Company Limited (Employment and Labour Relations Cause 565 of 2016) [2023] KEELRC 366 (KLR)
The bottom line
#A Kenyan court dismissed an unfair termination claim because the employee could not prove he was actually fired; he had refused an offer to return to work.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was terminated from employment
The claimant failed to prove termination; the correspondence showed the respondent still considered him an employee and urged him to resume work, and it was the claimant who declined to resume work
The court defined termination as complete severance of the employment relationship. Under section 47(5) of the Employment Act the employee must prove termination occurred. The letters from the respondent's advocates dated March 2016 expressly stated the claimant's services had not been terminated and asked him to resume work; the claimant did not disown the letters and gave no reason for failing to resume. The court therefore found no severance and held the claimant could not allege unfair termination.
Whether the termination, if any, was unfair and unlawful
The issue falls away as no termination was established
Having found that the claimant did not prove termination, the court held it was not logical to consider fairness, since the question of unfair termination is predicated on a prior finding that termination took place. The second issue therefore fell by the wayside.
What reliefs avail to the claimant
No reliefs awarded; each head of claim failed for want of proof or specificity
Because no termination was proved, notice pay, compensatory damages and service pay could not be sustained. The claim for unpaid leave days was not specifically pleaded or particularized. House allowance and underpayment claims failed for want of proof, as the claimant led no evidence of his salary or that it fell below wage guidelines.
Legal principles established
#- Under section 47(5) of the Employment Act, the employee bears the burden of proving that termination occurred and that it was unfair or wrongful before the employer is called upon to justify the reasons under section 43(1)
- Termination of employment means the complete severance of the employer-employee relationship
Court orders
#- 1.Dismissal of the claim in its entirety
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 37, 41, 43(1), 45, 47(5)) - not expressly stated in the extract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzeve v Ancarta Construction Company Limited (Employment and Labour Relations Cause 565 of 2016) [2023] KEELRC 366 (KLR)", Case Analysis (2023). Not stated in the judgment (Memorandum of Claim dated March 31, 2016, amended February 16, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/366/eng@2023-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.