Mbachi v Kazuri 2000 Limited (Cause 1171 of 2018) [2023] KEELRC 1026 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of Respondent's failure to adduce evidence
The Respondent's defence remained a mere statement without evidential value and its burdens under sections 41, 43, 45 and 47(5) were undischarged
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.
Procedural fairness of the termination
Termination was procedurally unfair as section 41 procedure was not followed
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).
Substantive justification for the dismissal
Termination was substantively unfair; refusal to sign a fresh contract without consensus did not justify summary dismissal
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.
Reliefs
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
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.
Legal principles established
#- 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
#- 1.A declaration that the dismissal of the Claimant from employment was both procedurally and substantively unfair
- 2.Salary in lieu of notice of Ksh.15,652
- 3.Compensation pursuant to section 49(1)(c) of the Employment Act of Ksh.125,216 (8 months' gross salary)
- 4.Interest at court rates from the date of judgment till full payment
- 5.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.