Tororei v Catholic Diocese of Nakuru (Cause 297 of 2015) [2023] KEELRC 1859 (KLR)
The bottom line
#A Kenyan court ruled a grounds man was unfairly terminated, but he only won a fraction of his claim because he couldn't prove overtime and other demands.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The Claimant was engaged as a grounds man under a letter of appointment dated 19th May, 2008 and served as a month-to-month employee on permanent and pensionable terms
The letter of appointment clearly stated engagement as a grounds man from 1st May, 2008. The court held oral allegations of additional roles as bus conductor and cleaner could not displace documentary evidence. Continuous, uninterrupted work until December 2013 established a month-to-month, permanent and pensionable relationship terminable only in accordance with the law.
Whether the termination was unfair and unlawful
The Respondent unfairly and unlawfully terminated the Claimant without notice and without substantive or procedural fairness
The Claimant was a month-to-month employee entitled to one month's notice under Section 35. The notice of end of contract dated 20th November, 2013 was only served on 8th January, 2014. No termination letter was issued and no disciplinary hearing was held, despite the alleged bad disciplinary record which was not relied upon in the non-renewal letter. Sections 41, 43, 45 and 47 were breached.
Proof of overtime, public holiday and off-duty claims
These claims failed for want of proof despite the Respondent's failure to avail employment records
Section 10(7) exposes an employer who fails to produce records to bearing the burden of terms alleged, but the overall burden remains on the employee to prove allegations on a balance of probability. The claim for overtime was premised on alleged work as a bus conductor, which the court found unproved. No co-worker was called and no specific holidays identified.
Compensation for unfair termination
Six months' gross salary (Kshs.54,900/=) awarded as fair and reasonable under Section 49(4)
The court considered the five years and more of service, the non-availability of reinstatement due to lapse of time, the non-specialized nature of the services, the terminal payments already made, and the absence of conduct by the Claimant contributing to the termination.
Legal principles established
#- Documentary evidence cannot be altered, amended, dislodged or displaced by oral evidence
- Unfair termination requires both substantive and procedural fairness - a valid reason and a fair hearing
- An employer's failure to keep employment records does not shift the overall burden of proof of overtime or similar claims onto the employer; the employee alleging must prove the claim
- Under Section 90 of the Employment Act, monetary claims can only relate to a period of three years immediately preceding the date of filing
Court orders
#- 1.A declaration that the termination of the Claimant by the Respondent was unfair and unlawful
- 2.Award to the Claimant of Kshs.64,050/= comprising Kshs.9,150/= one month's salary in lieu of notice and Kshs.54,900/= compensation for unfair and unlawful termination
- 3.All other claims denied
- 4.Costs to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (specific enabling article not cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tororei v Catholic Diocese of Nakuru (Cause 297 of 2015) [2023] KEELRC 1859 (KLR)", Case Analysis (2023). Employment and Labour Relations Cause (Nakuru), memorandum of claim dated 23rd June, 2021, filed 12th October, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1859/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.