Eshitubi v Talash Dry Cleaners and Laundry (Cause 390 of 2018) [2025] KEELRC 2806 (KLR)
The bottom line
#A Kenyan court dismissed an employee's unfair termination claim but still awarded him Kshs. 34,000 for untaken leave the employer couldn't prove was taken.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant proved wrongful/unfair termination
The claim was dismissed; the court found the Claimant absconded after refusing to accept a warning letter, and found the Respondent's evidence credible.
Section 47(5) places the initial burden on the employee to establish termination. The Respondent denied terminating the Claimant, and RW1 and RW2's evidence, corroborated by the warning letter, established that the Claimant came to work under the influence of alcohol on 18 September 2017, was escorted out, refused to sign the warning letter on 3 October 2017, and never returned. The court disbelieved the Claimant's account that the director's mother assaulted him.
Whether the Claimant was entitled to service pay
Refused; registration with NSSF and NHIF disqualifies the claim under section 35(5) of the Employment Act, 2007.
RW1 produced documents showing the Claimant was registered with NSSF and NHIF. Section 35(5) of the Employment Act excludes service pay where the employee is a member of a statutory pension or provident fund. The claim for service pay was accordingly dismissed.
Whether the Claimant was entitled to payment in lieu of untaken leave
Allowed; awarded Kshs. 34,000.00 for leave days not taken in 2015 and 2017.
The Respondent bore the onus of proving that the Claimant took leave or was paid in lieu of leave, as alleged by RW1. RW1 failed to produce such evidence. The Claimant therefore proved he was owed Kshs. 34,000.00 for untaken leave for 2015 and 2017, and was also entitled to a certificate of service.
Legal principles established
#- Under section 47(5) of the Employment Act, 2007, the burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the termination rests on the employer.
- The employer bears the onus of producing evidence that an employee took leave or was paid in lieu of untaken leave days.
Court orders
#- 1.The claim for unlawful and unfair termination is dismissed.
- 2.The Claim for service pay is dismissed.
- 3.The Respondent to pay the Claimant Kshs. 34,000.00 in lieu of leave days not taken for 2015 and 2017, with interest at court rates from the date of judgment until payment in full.
- 4.The Respondent to give the Claimant a certificate of service within 30 days of the judgment.
- 5.Each party to bear their own costs of the suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (s. 47(5) claim for unfair termination and wrongful dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eshitubi v Talash Dry Cleaners and Laundry (Cause 390 of 2018) [2025] KEELRC 2806 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2806/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.