Ouma v Dominion Outdoor Advertising (2006) Ltd (Cause 1052 of 2018) [2023] KEELRC 2202 (KLR)
The bottom line
#A Kenyan employer lost an unfair termination case largely because it showed up in court with arguments but no witnesses to prove them.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unfairly terminated
The termination was unfair; the Respondent failed to prove substantive justification and procedural fairness under Sections 41 and 45(2) of the Employment Act, having adduced no evidence at the hearing
The Respondent filed a response but did not call any evidence or file submissions. Relying on CMC Aviation and North End Trading, pleadings unsupported by evidence are of no probative value. There was no evidence of service of a termination notice nor that the Claimant was taken through the mandatory disciplinary process under Section 41. The Claimant's case therefore stood uncontroverted and proved on a balance of probability.
Whether the suit was time barred
The limitation defence failed because no definite termination date was proved and the Respondent adduced no evidence on the point
The Respondent alleged termination on 20th August 2014 but never proved it through evidence. The court noted there was no definite termination date of the Claimant's contract and, in any event, the Respondent rendered no evidence to prove the claim was filed out of time.
Effect of a party failing to adduce evidence despite filing pleadings
Pleadings are not evidence; an uncontroverted claimant's case is taken as proved on a balance of probability
Relying on North End Trading, Alex Lutungu Matange and Peyiai Nkoitoi, the court held that documents filed but not adopted through a witness remain mere pleadings. Section 107 of the Evidence Act places the burden of proof on the party asserting facts; the Respondent discharged none.
Legal principles established
#- Pleadings not supported by evidence have no probative value; a defendant who files a defence but calls no evidence leaves the claimant's case uncontroverted
- Under Section 45(2) of the Employment Act the employer bears the burden of proving a valid and fair reason and fair procedure for termination
- Failure to take an employee through the disciplinary process under Section 41 of the Employment Act renders a termination unfair
Court orders
#- 1.One month's salary in lieu of notice of Kshs 22,000/-
- 2.Leave days granted as prayed at Kshs 35,538/-
- 3.Compensation for unlawful termination equivalent to 4 months' salary at Kshs 88,000/-
- 4.Certificate of service to be issued within 30 days
- 5.Total award of Kshs 145,538/-
- 6.Costs awarded to the claimant
- 7.Interest from the date of judgment till full payment at court rates
- Jurisdiction invoked
- Original jurisdiction under the Employment Act 2007 (Sections 41, 43, 45) as an employment and labour relations dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ouma v Dominion Outdoor Advertising (2006) Ltd (Cause 1052 of 2018) [2023] KEELRC 2202 (KLR)", Case Analysis (2023). Cause No 1052 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2202/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.