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ELRCPartially AllowedCause No 183 of 2014· [2015] KEELRC 57 (KLR)

Job Onyinkwa v Expressions Flora Limited [2015] KEELRC 57 (KLR)

Employment and Labour Relations Court
17 December 2015
1,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court found a worker's dismissal unfair but awarded only part of his claims because his case was badly prepared—good evidence matters as much as good law.

What this practically means

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Executive summary

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The Claimant sued his former employer, Expressions Flora Ltd, for wrongful dismissal, lack of notice, unpaid terminal benefits, night allowances, leave and overtime. The Respondent filed a Response containing general denials but, after successive adjournments and non-payment of adjournment fees, its case was closed without any witnesses being called. The court identified two issues: whether the dismissal was unfair and the appropriate remedies. It held that in an unfair termination complaint, bare denials do not satisfy the statutory burden under sections 43 and 45 of the Employment Act, 2007, which require the employer to prove the reasons for dismissal and their validity and fairness. The Respondent also failed to show that a section 41 hearing was held or that a section 35 written termination notice was issued, while the Claimant met the low threshold of proof under section 47(5). The dismissal was found procedurally and substantively unfair. On remedies, the court awarded Kshs 100,000/- overtime (the employer produced no employment records), Kshs 5,000/- leave, Kshs 9,600/- for NSSF deductions collected but not remitted, and Kshs 5,000/- for one month's notice, totalling Kshs 119,600/-. It refused compensation despite the finding of unfairness, citing the poorly prosecuted case, and rejected the night allowance, three months' notice and terminal benefit claims for lack of material or contractual foundation. The other heads were dismissed, and given the incoherent memorandum of claim, each party was ordered to bear its own costs. Judgment was delivered in Nakuru on 17 December 2015 by Radido Stephen, Judge.

Key legal issues

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01

Whether the dismissal was unfair

Holding

The dismissal was both procedurally and substantively unfair; the Respondent failed to prove the reasons for dismissal or their validity and fairness

Reasoning

Section 43 places the burden on the employer to prove reasons for dismissal and section 45 requires the reasons to be valid and fair. The Respondent pleaded general denials, called no witnesses, and did not show that a section 41 hearing was held or that a section 35 written notice of termination was issued. The Claimant met the low threshold of proof under section 47(5).

p. 2
02

Overtime claim

Holding

Court found for the Claimant on the pleaded Kshs 100,000/- as the Respondent produced no employment records to controvert the claim

Reasoning

The court noted the notorious fact that guards work 12-hour shifts, and section 10 of the Employment Act placed the obligation on the employer to controvert the claim. No employment records were produced, so the uncontroverted claim succeeded.

p. 3
03

Leave entitlement

Holding

One month's basic pay for each of 2009, 2010 and 2011 granted in lieu of leave, though only Kshs 5,000/- was quantified and awarded

Reasoning

The law entitles an employee to at least 21 days annual leave per completed year with full pay. The Claimant testified he took no leave from 2009 to 2011 and this was unchallenged; the wage from 1 November 2009 was Kshs 5,000/-, the amount awarded.

p. 3
04

NSSF deductions not remitted

Holding

Respondent to refund the Kshs 9,600/- deducted but not remitted; failing to remit is an offence

Reasoning

By deducting and failing to remit NSSF contributions the Respondent committed an offence; the Claimant was entitled to a refund of the deducted monies.

p. 3
05

Compensation as a remedy for unfair dismissal

Holding

Despite the finding of unfair dismissal, compensation was refused in the court's discretion

Reasoning

Compensation is a primary but discretionary remedy. Having regard to the incoherent pleading and the poorly prosecuted case, the court declined to exercise the discretion in the Claimant's favour.

p. 3

Legal principles established

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  • In a complaint of unfair termination, bare denials and putting the employee to strict proof are inadequate pleadings because the employer bears a statutory burden to prove reasons for dismissal
  • An employee has a low threshold standard of proof under section 47(5) of the Employment Act
  • An advocate holding brief must have full instructions and cannot use that role merely to seek adjournments

Court orders

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  1. 1.Respondent to pay the Claimant overtime of Kshs 100,000/-
  2. 2.Respondent to pay the Claimant leave of Kshs 5,000/-
  3. 3.Respondent to pay the Claimant Kshs 9,600/- being NSSF deductions not remitted
  4. 4.Respondent to pay the Claimant 1 month wage in lieu of notice of Kshs 5,000/-, totalling Kshs 119,600/-
  5. 5.Other heads of claim dismissed
  6. 6.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 10(3) and (7)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 35
  • Employment Act, 2007section 10
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 referenced as governing statute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Job Onyinkwa v Expressions Flora Limited [2015] KEELRC 57 (KLR)", Case Analysis (2015). Cause No 183 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/57/eng@2015-12-17

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