Kibui & 3 others v Kirinyaga Construction Company Limited (Cause 215 of 2017) [2024] KEELRC 2070 (KLR)
The bottom line
#The court dismissed most claims because the workers couldn't prove unfair termination, but awarded each Kshs.32,000 transport allowance and certificates of service.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of employment was unfair or unlawful
Claimants failed to prove unfair termination on a preponderance of probabilities
Section 45 requires the employer to show valid and fair reason and fair procedure, but Section 47(5) places the burden of proving that unfair termination occurred on the employee. The claim was reticent on the circumstances of the termination, no claimant testified on how the separation occurred, and the conspicuous omission of a compensation prayer reinforced the failure of proof. The employer therefore did not need to justify anything.
Whether salary arrears are payable despite the South Sudan consent judgment
Claim declined; arrears were fully settled under the consent judgment
The salary arrears claim precipitated Civil Suit No. 265 of 2015 in South Sudan, resolved by a consent adopted as judgment for Kshs.7,392,979.00. The Claimants each agreed on and received payment and signed agreements. A dissatisfied party to a consent judgment must approach the trial court; obligations could not extend beyond the foreign consent judgment.
Entitlement to service pay
Declined for want of proof of non-membership of NSSF
Service pay is unavailable to members of a compulsory social security scheme. NSSF membership is mandatory for both employer and employee, and the burden lay on the Claimants to demonstrate they were not members and that deductions were not remitted. None produced NSSF statements, so the prayer failed.
Transport allowance for return from South Sudan
Awarded as prayed, Kshs.32,000/= each to the 1st, 3rd and 4th Claimants
The Respondent adduced no evidence on how the Claimants left South Sudan or how it facilitated their return. Having taken them to South Sudan, the employer was obliged to ensure their safe return home; the claim was modest and justifiable.
Legal principles established
#- For a termination to be fair it must be both substantively justified and procedurally fair
- The employee bears the burden of proving unfair termination while the employer must justify the grounds for termination
- Obligations under a consent judgment cannot be re-litigated in another jurisdiction
Court orders
#- 1.Judgment entered in favour of the three participating Claimants against the Respondent for transport allowance of Kshs.32,000/= each
- 2.Claimants to be issued with certificates of service
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibui & 3 others v Kirinyaga Construction Company Limited (Cause 215 of 2017) [2024] KEELRC 2070 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2070/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.