Nyamai v Oshwal Aluminium Industries Limited (Cause 1893 of 2016) [2023] KEELRC 517 (KLR)
The bottom line
#A Kenyan court ruled an employee was unfairly fired for asking for paternity leave, because the employer could not prove he absconded, awarding him over Kshs 182,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was unfairly terminated
Yes - the respondent failed to adduce evidence proving the alleged abscondment, and the claimant's uncontroverted evidence that he was dismissed for requesting paternity leave was accepted
Section 43 of the Employment Act places the burden on the employer to prove the reason for termination. The respondent called no evidence and filed no submissions. The claimant's adopted witness statement, stating he was terminated for requesting paternity leave, stood uncontroverted. Allegations of desertion require proof of efforts to contact the employee, which was not produced. The termination was therefore without due regard to sections 41, 45 and 47 of the Employment Act.
Whether uncontroverted evidence satisfies the standard of proof in civil cases
Yes - where a defendant fails to adduce evidence, unchallenged evidence on oath supported by documents attains the balance of probabilities
Relying on Linus Nganga Kiongo & 3 others v Town Council of Kikuyu (quoting Drappery Empire v The Attorney General, Rawal J), the claimant argued and the court accepted that where the respondent adduces no evidence, the claimant's sworn testimony stands uncontroverted and meets the civil standard of proof on a balance of probabilities.
Remedies payable on a finding of unfair termination
Untaken leave days and two months' salary as compensation awarded; service pay declined as not proved
The claimant worked about 1½ years with no evidence of contribution to his termination, justifying compensation equivalent to two months' salary. Untaken leave days were awarded because the respondent failed to establish whether leave was granted. Service pay was declined because payslips showed statutory deductions and no NSSF evidence of non-remittance was tendered.
Legal principles established
#- The employer bears the burden of proving the reason for termination; failure to do so renders the termination unfair
- An employer alleging desertion or absconding of duty must prove efforts made to reach out to the employee; it is not sufficient to merely allege desertion
Court orders
#- 1.Untaken leave days awarded at Kshs 75,208/-
- 2.Compensation of two months' equivalent of salary being Kshs 107,440/- awarded
- 3.Costs of the suit awarded to the claimant with interest at court rates from the date of judgment until full payment
- 4.Total award of Kshs 182,648/-; judgment entered in favour of the claimant for unlawful and unprocedural termination of employment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment and Labour Relations Court); no specific provision stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyamai v Oshwal Aluminium Industries Limited (Cause 1893 of 2016) [2023] KEELRC 517 (KLR)", Case Analysis (2023). Not stated in the judgment (memorandum of claim dated September 02, 2016, filed 14/9/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/517/eng@2023-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.