Matsitsi (Suing as Personal Representative of the Estate of Benson Shilibea (Deceased)) v Construction Company Limited (Cause 2178 of 2017) [2024] KEELRC 2390 (KLR)
The bottom line
#The Employment Court dismissed a Sh492,134 claim because the employee had resigned, settled the matter, and the claimant couldn't prove the sums owed.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased's employment was terminated or he resigned
The court found the deceased resigned on 12th October 2017 and later withdrew the suit by letter dated 23rd June 2018, waiving further claims
The claim and witness statement alleged termination on 14th October 2017, but this contradicted documents authored by the deceased, including an Employer Exit Checklist completed by him with 'resignation' inserted by hand and his own letter of 23rd June 2018 admitting resignation and agreeing to withdraw the suit upon payment of specified dues. The claimant's witness did not controvert these documents or suggest the deceased lacked free will.
Whether the deceased was an employee of the Respondent
Yes - the Respondent admitted it and documentary evidence confirmed employment
The Respondent admitted the deceased was its employee, and there was overwhelming documentary evidence, including payslips, proving employment within the meaning of Section 2 of the Employment Act. The deceased was employed as a mason paid per hour with a job card.
Entitlement to the monetary reliefs of Kshs 492,134.4
Declined for want of proof; the sums were special damages requiring strict proof
No evidence showed agreement on risk allowance of Kshs 10,000 per month, which was not reflected in any payslip. The sum of Kshs 240,134.4 for work done lacked particulars of services rendered or duration, and no evidence proved the alleged Kshs 6,000 monthly deductions beyond the September 2017 salary.
Damages for breach of contract
Disallowed; damages do not lie for termination of a contract of service
The court agreed with the Respondent that damages are not available for termination of a contract of service, and in any event the Claimant did not demonstrate evidentiary entitlement to such damages.
Legal principles established
#- For the burden of proof to shift to the employer, the employee must first establish a prima facie case of unlawful termination or wrongful dismissal
- Claims in the nature of special damages must be specifically pleaded and strictly proved
- An action in damages does not lie for termination of a contract of service
Court orders
#- 1.The Claimant's suit against the Respondent is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 over a claim for breach of contract of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matsitsi (Suing as Personal Representative of the Estate of Benson Shilibea (Deceased)) v Construction Company Limited (Cause 2178 of 2017) [2024] KEELRC 2390 (KLR)", Case Analysis (2024). Not stated in the judgment (Employment and Labour Relations Court Cause, Claim filed 2nd November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2390/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.