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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 2408 (KLR)

Mwinzi v Athi River Marble & Granite Ltd (Cause 356 of 2018) [2023] KEELRC 2408 (KLR)

Employment and Labour Relations Court
3 October 2023
646 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who denies a worker's claim without evidence lost, paying Kshs.259,368 in terminal dues plus full costs.

What this practically means

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Executive summary

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This was an employment claim filed at the Employment and Labour Relations Court in which the Claimant, employed as a Stone Mason on or about February 1, 2012 at a monthly salary of Kshs.24,240.00, alleged that he was declared redundant on March 1, 2016 without payment of terminal dues. He claimed salary arrears of Kshs.242,000 (May 2015 to February 2016) and annual leave pay of Kshs.16,968, totalling Kshs.259,368, plus costs and interest. The Respondent filed a Response denying the claim, describing it as vague, misconceived and fictitious, and sought its dismissal with costs. The Claimant filed written submissions; the Respondent filed none. The court framed four issues: whether an employment relationship existed, whether terminal dues were owed, entitlement to relief, and costs. The court found the employment relationship proved on the strength of the Claimant's supplementary documents, witness statement and a demand letter drawn by Kituo Cha Sheria, and on a balance of probabilities and preponderance of evidence. It characterized the Respondent's defence as a sham that merely denied and rubbished the claim without offering any substantial answer, and therefore not capable of standing as a defence. Finding the defence hollow if not completely absent, the court allowed the claim, awarded salary arrears of Kshs.242,000.00 and leave pay of Kshs.16,968.00, totalling Kshs.259,368.00, and directed the Respondent to bear the costs of the suit. Judgment was delivered, dated and signed on October 3, 2023 by D. K. Njagi Marete, Judge. Mr. Okello, instructed by Okello & Lusenaka Advocates, appeared for the Claimant; there was no appearance for the Respondent.

Key legal issues

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01

Whether the Claimant was an employee of the Respondent

Holding

The court found the employment relationship established on the strength of the Claimant's documents, witness statement and demand letter

Reasoning

The court relied on the Claimant's supplementary list of documents, his witness statement and a demand letter dated June 7, 2021 drawn by Kituo Cha Sheria. The Respondent filed no submissions and its defence was a bare denial that did not engage the evidence. On the material before it, the court was satisfied the Claimant was employed as a Stone Mason from February 2012 until his alleged redundancy in March 2016.

p. 2
02

Whether the Claimant is owed terminal dues as claimed

Holding

The Claimant was owed and awarded salary arrears of Kshs.242,000.00 and annual leave pay of Kshs.16,968.00, totalling Kshs.259,368.00

Reasoning

The court found the Claimant's case overwhelmingly supported by the material on record while the defence was hollow or completely absent. The Respondent's defence merely denied and rubbished the claim without offering any substantial answer, so it could not stand as a defence. The court accordingly awarded the sums particularised in the claim.

p. 2
03

Costs of the cause

Holding

Costs were awarded to the Claimant against the Respondent

Reasoning

Having succeeded in his claim, the Claimant was granted costs of the suit, which the court directed the Respondent to bear.

p. 2

Legal principles established

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  • A bare denial that does not answer the claim or the issues raised does not constitute a defence capable of consideration by the court
  • In employment claims, the claimant proves his case on a balance of probabilities and preponderance of evidence

Court orders

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  1. 1.Payment of salary arrears of Kshs.242,000.00
  2. 2.Payment of annual leave pay of Kshs.16,968.00
  3. 3.Total award of Kshs.259,368.00 to the Claimant
  4. 4.Costs of the suit to be borne by the Respondent
Jurisdiction invoked
Employment and labour relations jurisdiction (claim for terminal benefits); specific provision not cited in the judgment

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, "Mwinzi v Athi River Marble & Granite Ltd (Cause 356 of 2018) [2023] KEELRC 2408 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2408/eng@2023-10-03

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