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ELRCDismissedNot stated in the judgment (Memorandum of Claim dated March 31, 2016, amended February 16, 2021)· [2023] KEELRC 366 (KLR)

Nzeve v Ancarta Construction Company Limited (Employment and Labour Relations Cause 565 of 2016) [2023] KEELRC 366 (KLR)

Employment and Labour Relations Court
10 February 2023
2,525 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed as a general worker and later storekeeper, alleged that on February 6, 2016 the respondent's clerk verbally told him not to report to work the following week, amounting to summary dismissal without notice or a hearing. He sought Kshs 693,745.00 as notice pay, house allowance, unpaid leave days, service pay, compensatory damages for unlawful termination and underpayments. The respondent denied terminating him, asserting that the building contract had ended, all workers were temporarily laid off, and that when work resumed and the claimant was recalled, he refused to resume and left employment voluntarily. The respondent exhibited correspondence from its advocates stating that the claimant's services had not been terminated and urging him to resume work. The court framed three issues: whether termination occurred; whether it was unfair; and what reliefs availed. Applying the definition of termination as complete severance of the employment relationship, and section 47(5) of the Employment Act placing the burden of proof on the employee, the court relied on the correspondence, which the claimant did not disown, to find the respondent still regarded him as an employee and pleaded with him to resume work. The claimant failed to prove termination, and offered no reason for not resuming work. The fairness issue fell away, and each head of relief failed: notice pay, compensatory damages and service pay for want of termination; unpaid leave for lack of pleading and particularization; house allowance and underpayment for want of proof. The respondent filed no submissions. The court dismissed the claim in its entirety, with each party bearing its own costs.

Key legal issues

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01

Whether the claimant was terminated from employment

Holding

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

Reasoning

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.

p. 5
02

Whether the termination, if any, was unfair and unlawful

Holding

The issue falls away as no termination was established

Reasoning

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.

p. 5
03

What reliefs avail to the claimant

Holding

No reliefs awarded; each head of claim failed for want of proof or specificity

Reasoning

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.

p. 5

Legal principles established

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  • 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

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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 37
  • Employment Actsection 41
  • Employment Actsection 43(1)
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Chemelil Sugar Company vs Ebrahim Ochieng Otuon & 2 others
    (2015) eKLR
  • Felistas Acheha Ikatwa vs Charles Peter Otieno
    (2018) eKLR
  • Judith Atieno Owuor vs Sameer Agriculture & Livestock Limited
    (2020) eKLR
  • Walter Ogal Anuro vs Teachers Service Commission
    (2013) eKLR
  • Pius Machafu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
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

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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, "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.