Mutua v China National Aero Technology International Engineering Ltd (Cause 705 of 2015) [2024] KEELRC 1728 (KLR)

Relying on sections 107 and 108 of the Evidence Act, the court placed the burden of proof on the Claimant. The Claimant produced a gate pass indicating he was employed as a land surveyor and certificates of outstanding employee from CATIC International Engineering Corporation (K). The Respondent entered no appearance, filed no defence and gave no evidence, so the evidence stood uncontroverted and employment was established.

Under section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination, discharged by prima facie evidence, after which the burden shifts to the employer to justify the termination. The Claimant showed he was sent a text message on 30/09/2014 by the department manager telling him not to report to work, and was never recalled. The Respondent did not respond to a demand letter, filed no defence and did not appear. Asking an employee not to report to work without reason and without a notice to show cause violates Article 41 of the Constitution and sections 43(1), 45(1), 47 and 41 of the Employment Act.

The statement of claim and prayers were uncontroverted, so the court held them truthful and entered judgment for the Claimant. One month's salary in lieu of notice was awarded; service pay was granted for the 4 years worked; damages for illegal dismissal were limited to three months' salary equivalent considering the period worked. The untaken leave prayer was not proved. Interest at court rates from the date of judgment, costs and a certificate of service within 14 days were also ordered.