Mulovi v KIP Melamine Company Limited (Cause 688 of 2018) [2024] KEELRC 1112 (KLR)
The bottom line
#Kenya's Employment Court dismissed an unfair termination claim because the employee skipped his disciplinary hearing out of fear of arrest.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in unfair termination claims
The employee must prove unfair termination and the employer must show valid reasons; the claimant failed to discharge his burden
Section 47(5) of the Employment Act apportions the burden: the employee proves unfair termination occurred while the employer shows valid reasons. These burdens are mutually exclusive and failure by one does not discharge the other. Section 107 of the Evidence Act requires the party alleging a fact to prove it. The claimant alleged dismissal without notice or lawful cause, but the respondent proved suspension and invitation to a disciplinary hearing which the claimant did not attend.
Procedural fairness under section 41(1) of the Employment Act
The respondent complied; the claimant's failure to attend the disciplinary hearing was not attributable to the employer
The respondent suspended the claimant, issued a notice to show cause with the charges and offered him the right to be accompanied by a fellow employee at the hearing. The claimant admitted he was invited but chose not to attend for fear of arrest. The court held that fear of arrest is not a valid excuse, an arrest on suspicion is not a conviction, and the claimant thus squandered his opportunity to be heard.
Legal principles established
#- The burden of proof in unfair termination claims is apportioned under section 47(5) of the Employment Act: the employee proves unfair termination while the employer proves valid reasons, and the burdens are mutually exclusive
- An employee who fails to attend a properly notified disciplinary hearing cannot later fault the employer for summarily dismissing him; fear of arrest does not excuse non-attendance
Court orders
#- 1.The claim is dismissed with costs
- 2.It is so ordered
- Jurisdiction invoked
- Original jurisdiction under the Employment Act (memorandum of claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulovi v KIP Melamine Company Limited (Cause 688 of 2018) [2024] KEELRC 1112 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1112/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.