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ELRCPartially AllowedMemorandum of Claim dated 6th July 2018· [2023] KEELRC 1026 (KLR)

Mbachi v Kazuri 2000 Limited (Cause 1171 of 2018) [2023] KEELRC 1026 (KLR)

Employment and Labour Relations Court
27 April 2023
4,925 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fires a worker for refusing to sign a one-sided contract, then skips court, must pay compensation for unfair dismissal.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent since 2000 on an oral contract, was dismissed by letter dated 18th April 2017 after refusing to execute a written contract of employment which he contended failed to reflect his original employment date and outstanding dues. He claimed declarations of unfair termination and rights infringement, reinstatement, pay up to retirement age, overtime, house allowance, unpaid leave and general damages. The Respondent entered appearance and filed a response but called no witness at the hearing, relying instead on submissions. The court held that pleadings unsupported by evidence are of no evidential value and that the Employment Act places burdens of proof on the employer, which the Respondent failed to discharge. It further applied the principle that submissions are not evidence. Finding neither procedural fairness under section 41 nor substantive justification under sections 43 and 45, the court declared the dismissal procedurally and substantively unfair, holding that sections 9 and 10 of the Employment Act do not allow an employer to impose a written contract without the employee's consent to every term. Reinstatement was refused as more than three years had elapsed under section 12(3)(vii) of the ELRC Act. Claims for a rights declaration, pay to retirement age, house allowance, overtime, breach-of-contract and loss-of-income damages were rejected for want of proof or because dues were paid. The court awarded salary in lieu of notice of Kshs.15,652 and compensation of eight months' gross salary (Kshs.125,216) under section 49(1)(c), with interest and costs.

Key legal issues

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01

Effect of Respondent's failure to adduce evidence

Holding

The Respondent's defence remained a mere statement without evidential value and its burdens under sections 41, 43, 45 and 47(5) were undischarged

Reasoning

The court held that pleadings filed but unsupported by testimony have no evidential value. The Employment Act places legal burdens on the employer to prove procedural fairness, reasons for termination, and their validity. Where the party bearing such burdens adduces no evidence, the conclusion is that the burdens were not discharged. Submissions cannot substitute for evidence.

p. 5
02

Procedural fairness of the termination

Holding

Termination was procedurally unfair as section 41 procedure was not followed

Reasoning

The Claimant testified he was never given a notice to show cause, an opportunity to be heard, a termination letter or a right to appeal. The Respondent adduced no evidence of compliance with the mandatory procedure in section 41. The duty to prove procedural fairness lies on the employer under section 45(2).

p. 6
03

Substantive justification for the dismissal

Holding

Termination was substantively unfair; refusal to sign a fresh contract without consensus did not justify summary dismissal

Reasoning

The Respondent produced no evidence proving the reason for dismissal or its validity. The court rejected the argument that the employee should have 'secluded' objectionable clauses, holding that every term of a written contract requires the employee's consent under section 9(2). The grounds of insubordination were not cogently justified.

p. 7
04

Reliefs

Holding

Reinstatement refused as time-barred; declaration on rights refused; retirement-age pay, house allowance, overtime, breach-of-contract and loss-of-income damages refused; notice pay and 8 months' compensation awarded

Reasoning

Reinstatement is discretionary and statutorily constrained to three years post-separation under section 12(3)(vii) of the ELRC Act; about six years had passed. Specific heads failed for want of evidence, while notice pay under section 36 and compensation of 8 months' gross salary under section 49 were granted given length of service and the retaliatory manner of dismissal.

p. 9

Legal principles established

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  • A party's pleadings unsupported by testimony remain a mere statement without evidential value
  • Submissions are not a substitute for evidence
  • Unfair termination requires both substantive justification and procedural fairness; absence of either renders termination unfair
  • Sections 9 and 10 of the Employment Act do not permit an employer to impose a written contract on an employee without consensus on all terms

Court orders

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  1. 1.A declaration that the dismissal of the Claimant from employment was both procedurally and substantively unfair
  2. 2.Salary in lieu of notice of Ksh.15,652
  3. 3.Compensation pursuant to section 49(1)(c) of the Employment Act of Ksh.125,216 (8 months' gross salary)
  4. 4.Interest at court rates from the date of judgment till full payment
  5. 5.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsections 8, 9, 9(2), 10, 31, 36, 41, 42(1), 43, 43(2), 44, 44(2), 45, 45(2), 45(5), 47(5), 49, 49(3), 49(4), 49(4)(c)&(d), 50, 90
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Labour Relations Actsection 2, Part 10
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure Actsection 1B

Cases cited (5)

  • Kenya Union of Domestic, Hotels, Education, Hospital & Allied Workers v Holy Rosary Girls' Boarding Primary School
    [2013] eKLR
  • Fancy Kirui v Regional Transmission Company Limited
    [2018] eKLR
  • Otieno v South Nyanza Sugar Company Limited
    [2022] KLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12

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, "Mbachi v Kazuri 2000 Limited (Cause 1171 of 2018) [2023] KEELRC 1026 (KLR)", Case Analysis (2023). Memorandum of Claim dated 6th July 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1026/eng@2023-04-27

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