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ELRCDismissedNot stated in the excerpt provided· [2024] KEELRC 1771 (KLR)

Nyakundi v Banbros Limited (Appeal E002 of 2022) [2024] KEELRC 1771 (KLR)

Employment and Labour Relations Court
12 July 2024
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court (Rika J) against a judgment of the Chief Magistrate's Court at Mavoko, Machakos County, dated 8th December 2021, which dismissed in entirety the Appellant's employment claim against his former employer. The claimant had sought salary for April 2019, house allowance arrears, annual leave, leave allowance, paternity leave, salary increments and service pay. The appeal was canvassed by way of written submissions on the Record of Appeal. The Court held that the third ground of appeal was absurd, as no claim of unfair or unlawful termination existed before the Trial Court, the Appellant having resigned voluntarily. It held that Section 74 of the Employment Act places only a duty of custody of employment records on employers, not the burden of producing documents as evidence, so the Appellant bore the burden of proving his paternity leave and other claims. The claims for house allowance, annual leave, leave allowance and salary increments were rendered moot because the Appellant received Kshs. 28,216 in terminal benefits and executed a discharge voucher on 16th May 2019, which the Court, following Coastal Bottlers Limited v. Kimathi Mithika, held to be a valid and binding contract. The service pay claim failed as the Respondent was remitting N.S.S.F contributions. The Court characterized both the claim and the appeal as vexatious proceedings and dismissed the appeal with costs to the Respondent on 12th July 2024.

Key legal issues

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01

Scope of Section 74 of the Employment Act and burden of proof

Holding

Section 74 does not shift the burden of proof to the employer merely because it keeps custody of employment records; the party relying on the documents bears the responsibility of production

Reasoning

The Appellant contended that the Respondent bore the burden of proving payment of house allowance and grant of leave under Section 74 of the Employment Act. The Court rejected this, holding that Section 74 places a duty of keeping custody of employment records on the employer, but the production of such documents as evidence is primarily the responsibility of the party seeking to rely on them. The Appellant never demanded production of any document from the Respondent's custody during trial, nor testified to any rejected paternity leave application.

p. 3
02

Effect of a discharge voucher on terminal benefit claims

Holding

A discharge voucher executed after receipt of terminal dues is a valid and binding contract that bars subsequent claims for additional terminal benefits

Reasoning

The Appellant resigned voluntarily and received Kshs. 28,216 in terminal benefits, executing a discharge voucher on 16th May 2019. He did not contest its production or seek to have it struck out, and offered only generalized assertions of forgery without evidence. Following the Court of Appeal decision in Coastal Bottlers Limited v. Kimathi Mithika, the Court held the voucher binding, mooting the claims for house allowance, annual leave, leave allowance and salary increments.

p. 3
03

Burden of proof on paternity leave claims

Holding

The employee bears the burden of proving paternity, birth details and a denied application for paternity leave

Reasoning

The Court found it illogical to shift the burden of proving paternity leave to the employer, who was not responsible for the paternity. It was for the Appellant to prove he sired children, provide birth details, and show that he applied for paternity leave which was denied. No such evidence was adduced, and no application form was shown to be in the Respondent's custody.

p. 3
04

Ground of appeal on unlawful termination

Holding

The third ground of appeal was absurd as there was no claim or finding of unlawful termination before the Trial Court

Reasoning

The pleadings and proceedings before the Trial Court disclosed no allegation or prayer concerning unfair or unlawful termination. The Appellant resigned voluntarily and never pursued a claim for involuntary or unlawful termination, and the Trial Court made no finding on the subject. The ground was therefore misconceived.

p. 2

Legal principles established

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  • A discharge voucher executed on receipt of terminal dues is a valid and binding contract between the parties barring further claims
  • Section 74 of the Employment Act places only a duty of custody of employment records on the employer, not the burden of producing those documents as evidence in court

Court orders

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  1. 1.The Appeal is declined.
  2. 2.Costs to the Respondent.
On appeal from
Chief Magistrate's Court, Mavoko, Machakos County
Not stated
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Chief Magistrate's Court (not expressly cited in the judgment)

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, "Nyakundi v Banbros Limited (Appeal E002 of 2022) [2024] KEELRC 1771 (KLR)", Case Analysis (2024). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1771/eng@2024-07-12

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