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ELRCDismissedNot stated in the judgment· [2023] KEELRC 2989 (KLR)

Ogutu v Abyssinia Iron and Steel Ltd (Cause 66 of 2018) [2023] KEELRC 2989 (KLR)

Employment and Labour Relations Court
22 November 2023
RSRadido Stephen
462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a driver's unfair termination and underpayment claims because he could not prove them, showing employees must bring solid evidence.

What this practically means

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Executive summary

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The Claimant, a driver employed by the Respondent, sued for underpayment of wages (Kshs 20,362/-) and for compensation for alleged unfair termination of his employment on 5 December 2016 after three months of work. He testified that while transporting goods to Kitale he was arrested at Kakamega over worn-out tyres, charged and fined Kshs 30,000/- which the Respondent paid, and that a week after returning to work he was sent away by a manager without notice or hearing. The Respondent admitted the employment relationship but contended that the Claimant voluntarily retired, and relied on a Certificate of Service and a comfort letter issued to assist him access retirement benefits from the National Social Security Fund, documents produced by the Claimant himself. The Court framed three issues: unfair termination, underpayment, and appropriate remedies. On underpayment, the Court held the head of claim was not proved because it featured neither in the adopted witness statement nor in oral testimony. On termination, invoking section 47(5) of the Employment Act, 2007, the Court held the Claimant failed to show unfair termination occurred - he did not identify the manager who allegedly sent him away, and his age (55 in 2016) plus the terminal-benefits letter made retirement or resignation probable. The Court dismissed the entire Cause with no order on costs, delivered virtually and signed in Migori on 22 November 2023.

Key legal issues

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01

Underpayment of wages

Holding

The claim of Kshs 20,362/- failed because it was not proved.

Reasoning

The head of claim was pleaded in the Memorandum of Claim but was absent from the witness statement adopted as evidence and was never mentioned during oral testimony. The court therefore found that the Claimant had not discharged his evidentiary burden and dismissed that head.

p. 2
02

Unfair termination of employment

Holding

The Claimant did not prove unfair termination; the court found it probable he resigned or retired.

Reasoning

The Claimant alleged he was sent away without notice or hearing after 3 months of work. The Respondent showed he was issued a Certificate of Service and a comfort letter to obtain retirement benefits from NSSF, suggesting voluntary retirement. He also failed to name the manager who allegedly sent him away, so he did not discharge the burden under section 47(5) of the Employment Act, 2007.

p. 2

Legal principles established

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  • Under section 47(5) of the Employment Act, 2007, it is the employee's burden to show that unfair termination of employment occurred.

Court orders

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  1. 1.The Cause is dismissed with no order on costs

Authorities

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Legislation

  • Employment Act, 2007section 47(5)
Jurisdiction invoked
Employment and labour relations dispute under Article 162(2) of the Constitution and the Employment Act, 2007 (claim for unfair termination and underpayment of wages)

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, "Ogutu v Abyssinia Iron and Steel Ltd (Cause 66 of 2018) [2023] KEELRC 2989 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2989/eng@2023-11-22

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