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ELRCPartially AllowedCause No 1052 of 2018· [2023] KEELRC 2202 (KLR)

Ouma v Dominion Outdoor Advertising (2006) Ltd (Cause 1052 of 2018) [2023] KEELRC 2202 (KLR)

Employment and Labour Relations Court
22 September 2023
2,643 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 lost an unfair termination case largely because it showed up in court with arguments but no witnesses to prove them.

What this practically means

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Executive summary

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The Claimant, employed as a graphic designer, alleged constructive dismissal and non-payment of terminal dues following his suspension on 30th July 2014 over allegations of using the company logo on personal works and posting the Respondent's works on his website. He asserted that after responding to a show cause letter he was never called to a disciplinary hearing, never received a termination notice, and only learnt of his purported termination from the Respondent's advocates' letter of 19th October 2015. The Respondent, in its response, maintained the employment began on 1st September 2013 and that the Claimant was lawfully terminated on 20th August 2014 for poor performance and competing with the Respondent. At the hearing, the Respondent did not call any evidence and filed no submissions, despite being served. The court adopted the Claimant's witness statement and affidavit of service as his evidence and held that pleadings unbacked by evidence carry no probative value, leaving the Claimant's case uncontroverted. The court found the termination unfair, as the Respondent failed to prove a valid reason and procedural fairness under Sections 41 and 45(2) of the Employment Act, and found no evidence the Claimant was served a termination notice or subjected to the mandatory disciplinary process. The limitation defence also failed for want of evidence. The claim succeeded in part: notice pay of Kshs 22,000/-, leave pay of Kshs 35,538/- and four months' compensation of Kshs 88,000/- (total Kshs 145,538/-) were awarded, with a certificate of service within 30 days, costs to the Claimant and interest from judgment. Salary for 45 months of suspension and gratuity were declined as unproved. Judgment delivered virtually in Nairobi on 22nd September 2023 by Anna Ngibuini Mwaure, Judge.

Key legal issues

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01

Whether the Claimant was unfairly terminated

Holding

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

Reasoning

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.

p. 5
02

Whether the suit was time barred

Holding

The limitation defence failed because no definite termination date was proved and the Respondent adduced no evidence on the point

Reasoning

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.

p. 6
03

Effect of a party failing to adduce evidence despite filing pleadings

Holding

Pleadings are not evidence; an uncontroverted claimant's case is taken as proved on a balance of probability

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.One month's salary in lieu of notice of Kshs 22,000/-
  2. 2.Leave days granted as prayed at Kshs 35,538/-
  3. 3.Compensation for unlawful termination equivalent to 4 months' salary at Kshs 88,000/-
  4. 4.Certificate of service to be issued within 30 days
  5. 5.Total award of Kshs 145,538/-
  6. 6.Costs awarded to the claimant
  7. 7.Interest from the date of judgment till full payment at court rates

Authorities

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Legislation

  • Employment ActSections 41, 42(1), 43, 44(3), 44(4), 45(1), 45(2)(a) & (c)
  • Evidence Act (Cap 80)Sections 35(1), 107
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (7)

  • North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited) v City Council of Nairobi
    [2019] eKLR
  • Alex Lutungu Matange v Kanini Haraka Enterprises Ltd
    [2021] eKLR
  • Peyiai Nkoitoi v Aruba Mara Camp Safaris Ltd
    [2021] eKLR
  • CMC Aviation Ltd vs Cruise Ain (1)
    (1978) KLR 103
  • Edward Muriga through Stanley Muriga v Nathaniel D. Schulter
    Civil Appeal No.23 of 1997
  • Motex Knitwear Limited v Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No.834 of 2002
  • Autar Singh Bahra and Another v Raju Govindji
    HCCC No.548 of 1998
Jurisdiction invoked
Original jurisdiction under the Employment Act 2007 (Sections 41, 43, 45) as an employment and labour relations dispute

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, "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.