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ELRCDismissedNot stated in the judgment provided· [2024] KEELRC 1112 (KLR)

Mulovi v KIP Melamine Company Limited (Cause 688 of 2018) [2024] KEELRC 1112 (KLR)

Employment and Labour Relations Court
9 May 2024
2,299 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed from 3rd February 2015 initially as a casual worker and later on written contract, sued his former employer for unfair termination following his summary dismissal on 26th February 2018 over alleged theft of factory rejects. He sought one month's notice pay, leave pay, service pay, 12 months' salary for unfair termination, house allowance and a certificate of service. The respondent denied unfairness, asserting that the claimant was discovered stealing goods declared as rejects, admitted the offence in writing, was suspended and invited to a disciplinary hearing scheduled for 28th February 2018 but failed to attend. Two witnesses testified for the respondent; the director admitted the disciplinary notice was not actually served though the intention existed. The claimant admitted in cross-examination that his salary included house allowance and that he skipped the hearing for fear of arrest. The court applied section 47(5) of the Employment Act and section 107 of the Evidence Act, holding that the burdens of proving unfair termination and justifying termination are mutually exclusive. It found that fear of arrest did not excuse the claimant's non-attendance, that suspicion of an offence is not a conviction, and that the claimant squandered his opportunity to defend himself, so he cannot fault the respondent for the summary dismissal. The entire claim was found without merit and dismissed with costs.

Key legal issues

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01

Burden of proof in unfair termination claims

Holding

The employee must prove unfair termination and the employer must show valid reasons; the claimant failed to discharge his burden

Reasoning

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.

p. 5
02

Procedural fairness under section 41(1) of the Employment Act

Holding

The respondent complied; the claimant's failure to attend the disciplinary hearing was not attributable to the employer

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The claim is dismissed with costs
  2. 2.It is so ordered
Jurisdiction invoked
Original jurisdiction under the Employment Act (memorandum of claim for unfair termination)

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, "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.