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ELRCDismissedMemorandum of Claim filed 16th March 2017· [2023] KEELRC 2174 (KLR)

Lemelita v Tourism Promotion Services (K) Ltd (Cause 515 of 2017) [2023] KEELRC 2174 (KLR)

Employment and Labour Relations Court
22 September 2023
SRStella Rutto
3,697 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim failed because the worker never pleaded unfair medical retirement and offered no evidence for his compensation claims.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2005 as a guide, sued claiming compensation for industrial injuries under the Work Injury Benefits Act, 2007, compensation under Clauses 9, 14, 27 and 17 of the Collective Bargaining Agreement, acting allowance, and transport expenses of Kshs 10,000, arising from accidents in August 2007 and December 2014 and his subsequent retirement on medical grounds with effect from 7th June 2016. The Respondent denied liability, contending the December 2014 accident did not occur in the course of duty, that it catered for all medical bills, paid all terminal dues, and that the Claimant did not qualify for acting allowance. At a pre-hearing direction the Court had confined itself to the termination issue, referring work injury matters to the Director of Occupational Safety and Health. At hearing, the Claimant for the first time challenged the procedural fairness of his retirement and raised discrimination and reasonable accommodation. The Court (Stella Rutto, J) held that these issues were not pleaded, that parties are bound by their pleadings, and that submissions cannot substitute for evidence, following the Court of Appeal in IEBC v Mutinda Mule, Mukatha v Ouko and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi. On the pleaded reliefs, the CBA compensation claims were unparticularised and unsupported by evidence, and the specific transport claim was not strictly proved. The Court dismissed the entire claim, ordering each party to bear its own costs.

Key legal issues

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01

Whether the court could determine the fairness of the Claimant's retirement on medical grounds

Holding

The issue was not pleaded and only arose during hearing and submissions; the court is constrained to consider only issues raised in the Memorandum of Claim

Reasoning

The Court observed that the body of the Claim does not challenge the retirement on medical grounds; the Claimant did not plead unfair termination, discrimination or reasonable accommodation, so the Respondent could not address them in its Response. Reliance was placed on the Mutinda Mule and Mukatha decisions on the binding nature of pleadings.

p. 6
02

Whether the Claimant proved the claims under the CBA clauses and the transport expenses

Holding

The claims failed for want of particulars, a factual basis and supporting evidence

Reasoning

The Court found the CBA compensation claims unparticularised with no specified amounts or evidence, and the specific transport claim unsupported by any evidence, meaning the onus of strict proof was not met. Consequently the entire claim was dismissed with no order as to costs between the parties.

p. 7

Legal principles established

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  • Parties are bound by their pleadings and evidence that does not support the averments in the pleadings goes to no issue and must be disregarded
  • Submissions cannot take the place of evidence and do not constitute evidence at all
  • A specific claim must be strictly proved by the party making it

Court orders

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  1. 1.The Claim is dismissed in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Work Injury Benefits Act, 2007not specified (channeling of work injury claims to Director of Occupational Safety and Health)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B
  • Limitation of Actions Actsections 4 and 26 (as referenced within the quoted Court of Appeal excerpt)

Cases cited (6)

  • Kenya Plantation and Agricultural Workers Union v Rea Vipingo Plantation & Another
    [2015] eKLR
  • David Sironga Ole Tukai v Francis Arap Muge & 2 others
    [2014] eKLR
  • Independent Electoral and Boundaries Commission & another vs Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC
    SC 91/2002
  • Mukatha v Ouko (Administrator of the Estate of Jason Atinda Ouko- Deceased) & 4 others
    (Civil Appeal E211 of 2020) [2023] KECA 962 (KLR) (28 July 2023)
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court over the Memorandum of Claim; no constitutional or statutory basis expressly invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lemelita v Tourism Promotion Services (K) Ltd (Cause 515 of 2017) [2023] KEELRC 2174 (KLR)", Case Analysis (2023). Memorandum of Claim filed 16th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2174/eng@2023-09-22

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