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ELRCDismissedPetition dated 21.11.2023

Mbuthia v Raa Limited (Petition 225 of 2021) [2024] KEELRC 2681 (KLR)

Employment and Labour Relations Court
30 October 2024
2,388 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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The petitioner, formerly employed by the respondent as Chief Accountant on yearly renewable contracts, petitioned the Employment and Labour Relations Court challenging his summary dismissal by letter dated 25.06.2021. He sought declarations that three respondent letters were null and void for contravening various constitutional provisions, judicial review orders of certiorari, prohibition and mandamus (including reinstatement), or alternatively terminal benefits exceeding Kshs. 1.78 million, general and punitive damages, costs and interest. He alleged that during a Zoom meeting on 04.05.2021 a director abused him, he recorded the exchange, and was then assaulted, his phone confiscated and flashed, and ultimately dismissed without due process. The respondent denied the violations, asserting prior disciplinary warnings, a performance improvement plan, the petitioner's breach of policy by recording the meeting, absence from duty from 05.05.2021, failure to attend a scheduled disciplinary hearing, and summary dismissal for absconding and insubordination. The petition was canvassed by written submissions only; by consent the parties did not call witnesses despite earlier directions to do so. The court found a contract of service existed and that termination occurred by the letter of 25.06.2021. However, it held that for want of evidence, with witness statements never adopted and no examination or cross-examination conducted, it could not determine whether the dismissal was unfair or whether the alleged constitutional violations occurred. The petitioner having failed to establish his case on a balance of probability, the petition was dismissed with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the parties were in a contract of service
  2. 2.How and by what instrument the contract of service was terminated
  3. 3.Whether the termination was unfair and whether the petitioner's fundamental rights and freedoms under the Bill of Rights were violated as alleged

Key legal issues

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01

Whether the summary dismissal was unfair and constitutional rights were violated

Holding

The court could not determine unfairness or rights violation for want of evidence; the petition failed

Reasoning

The parties filed witness statements and documents but never called witnesses; witness statements were never adopted or tested by cross-examination, so glaring factual differences between the pleaded cases could not be reconciled. Submissions referring to witnesses could not cure the absence of testimony, and documents alone could not resolve the disputed facts. The petitioner therefore failed to prove his case on a balance of probability.

p. 5
02

Whether a contract of service existed and how it was terminated

Holding

The parties were in a contract of service, with the petitioner employed as Chief Accountant, terminated by the letter dated 25.06.2021 on grounds including failing to follow salary-calculation instructions, illegally recording a management meeting, and absconding duty

Reasoning

This was determined on the pleadings: the respondent employed the petitioner as Chief Accountant, and the dismissal letter of 25.06.2021 set out the reasons for termination. These findings were largely undisputed on the pleadings, though the underlying facts remained contested and untested for want of evidence.

p. 4

Legal principles established

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  • A party must establish its pleaded case by way of evidence on a balance of probability; submissions cannot substitute for testimony where facts are disputed
  • Where parties by consent elect to have a case decided on submissions without calling witnesses, unresolved factual disputes cannot support a finding on unfair termination or rights violations

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs of the proceedings

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BO
Byram OngayaPrincipal Judge
majority

Wrote the judgment

Jurisdiction invoked
Articles 25(c), 28, 31, 41, 47, 48, 50 and 236 of the Constitution of Kenya, 2010 (employment and constitutional violation claims)

Relief refused

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Declarations that the respondent's letters of 06.05.2021, 07.05.2021 and 25.06.2021 were illegal, null and void and that constitutional rights were violated

For want of evidence; crucial issues of fact remained unanswered and no witnesses were called or cross-examined

p. 4

Judicial review orders of certiorari, prohibition and mandamus, reinstatement or terminal benefits, general and punitive damages

The petition failed because the petitioner did not establish the pleaded case by evidence on a balance of probability

p. 5

Costs

Each party to bear own costs of the proceedings

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion the petition is hereby dismissed with orders each party to bear own costs of the proceedings.
p. 5Final orders/disposition
the petitioner has failed to establish the pleaded case by way of evidence, on a balance of probability
p. 5Burden of proof and effect of failure to call witnesses
While parties filed witness statements and documents, they failed to call witnesses and instead recorded a consent to simply have the case decided upon the final submissions.
p. 5Deciding a case on submissions only

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, "Mbuthia v Raa Limited (Petition 225 of 2021) [2024] KEELRC 2681 (KLR)", Case Analysis (2024). Petition dated 21.11.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2681/eng@2024-10-30

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