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ELRCPartially AllowedELRC Claim dated 26th February 2018 (Nairobi)· [2023] KEELRC 3042 (KLR)

Mutiso v Endmor Steel Millers (Employment and Labour Relations Cause 698 of 2018) [2023] KEELRC 3042 (KLR)

Employment and Labour Relations Court
24 November 2023
AMAnna Ngibuini Mwaure
1,803 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee who claimed he was forced to resign failed to prove it, winning only unpaid leave pay.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from around February 2016 as a mechanical fitter on a daily wage of Kshs 1,000/-, claimed his casual employment had converted to a term contract by operation of law under section 37(1)(a) of the Employment Act, and that on 4th July 2017 he was terminated without reason or notice, without rest days, and without proper overtime pay. He sought to demonstrate he was forced to sign a resignation letter dated 6th June 2017 under threat of non-payment of dues. The Respondent countered that after the Kenya Bureau of Standards stoppage of twisted bars production in March 2017, it offered redeployment to affected workers by internal memo dated 2nd May 2017, and that the Claimant opted for early retirement by his own letter, received his final dues, and signed a voucher confirming no further claims. The sole substantive issue was whether the Claimant voluntarily resigned or was unfairly terminated. Applying Steve Mutua Munga v Homegrown (K) Limited, Reuben Lucheleli Shikuri v Eldoret Packers Ltd and Aristide Marege Nyang'au v Lavington Security Limited, the court held that the burden of proving duress lay on the Claimant under sections 107 and 109 of the Evidence Act, and that the Claimant had failed to discharge it: the resignation letter was written by him and expressed no coercion. The court found he voluntarily resigned and was not unfairly terminated. He was denied payment in lieu of notice, but was awarded Kshs 36,000/- for untaken leave because the Respondent produced no leave records, with interest from judgment. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant voluntarily resigned or was unlawfully and unfairly terminated

Holding

The Claimant voluntarily resigned; his employment was not unlawfully or unfairly terminated

Reasoning

The Respondent produced an internal memo dated 2nd May 2017 offering redeployment after the government ban on twisted metal bars ended work in the twisting department, which the Claimant did not deny. The resignation letter seeking early retirement was written by the Claimant himself and expressed nothing suggesting coercion. Having failed to prove duress, the resignation stands and the termination claim fails.

p. 4
02

Burden of proof regarding coercion/duress

Holding

The burden lay on the Claimant under sections 107 and 109 of the Evidence Act, not on the Respondent to disprove coercion

Reasoning

The court rejected counsel's reliance on section 107 to place the onus on the Respondent. Whoever asserts a fact must prove it; only once the Claimant discharged that burden would an evidential burden shift to the Respondent. Coercion is not a light matter and must be pleaded and established with precision.

p. 4

Legal principles established

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  • The burden of proving that a resignation letter was signed under duress lies on the employee under sections 107 and 109 of the Evidence Act, and the evidential burden only shifts after that burden is discharged

Court orders

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  1. 1.Claimant awarded Kshs 36,000/- for leave not taken equivalent to one month plus interest at court rates from date of judgment until full payment
  2. 2.Claim for unlawful and unfair termination dismissed; claimant held to have voluntarily resigned
  3. 3.No payment in lieu of notice awarded
  4. 4.Each party to meet their respective costs

Authorities

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Legislation

  • Employment Actsection 37(1)(a)
  • Evidence Actsections 107, 108, 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure Actsection 1B

Cases cited (3)

  • Steve Mutua Munga v Homegrown (K) Limited & 2 others
    [2013] eKLR
  • Reuben Lucheleli Shikuri v Eldoret Packers Ltd
    [2015] eKLR
  • Aristide Marege Nyang'au vs Lavington Security Limited
    [2021] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction under the Employment and Labour Relations Court Act; claims founded on section 37(1)(a) of the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mutiso v Endmor Steel Millers (Employment and Labour Relations Cause 698 of 2018) [2023] KEELRC 3042 (KLR)", Case Analysis (2023). ELRC Claim dated 26th February 2018 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3042/eng@2023-11-24

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