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ELRCDismissedNot stated in the judgment· [2018] KEELRC 1876 (KLR)

Samuel Mwikya Kilonzi v H. Young & Co. (E.A) Limited [2018] KEELRC 1876 (KLR)

Employment and Labour Relations Court
26 April 2018
1,596 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Nyeri dismissed a driver's unfair termination claim because he couldn't prove his allegations, and each side paid its own costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a driver from 9th September 2016 and summarily dismissed on 24th October 2016, alleged breach of natural justice and sought one month's salary in lieu of notice, leave days, severance pay, transport allowance, general damages for wrongful dismissal and a certificate of service. The Respondent contended the dismissal was for justifiable cause - careless and improper driving, including speeding - and denied the court's jurisdiction. The Respondent's witness admitted no records of the alleged verbal warnings existed, the accident was not reported to the police, and the Claimant was not called to account before the summary dismissal. The Claimant relied on authorities including Walter Ogal Anuro v TSC and Mary Chemweno Kiptui v Kenya Pipeline to argue that both substantive justification and procedural fairness under Sections 41, 43 and 45 of the Employment Act must be satisfied. The Respondent relied on the same fairness test, asserting compliance with Sections 41(2) and 45(4). The court, per Nzioki wa Makau J, held that the reasons for termination were fair and sufficient, noting the Claimant was in a probationary period and had admitted in cross-examination that he was given a reason (careless driving) for dismissal. Holding that the Claimant failed to prove his allegations, the court dismissed the entire suit and ordered each party to bear their own costs. Judgment was dated and delivered at Nyeri on 26th April 2018.

Key legal issues

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01

Whether the summary dismissal of the Claimant was substantively justified and procedurally fair

Holding

The court found the reasons for termination fair and sufficient, and held the Claimant failed to prove he was not given a reason for his dismissal, dismissing the suit

Reasoning

The Claimant was dismissed about a month and a half into employment, during the probationary period. The dismissal letter cited driving beyond the speed limit. Although the Respondent's witness admitted there were no records of verbal warnings and no hearing before dismissal, the court found the reasons fair. The Claimant admitted in cross-examination that he was given a reason (careless driving) for the dismissal. On burden of proof, the Claimant did not prove his allegations and the suit failed.

p. 2
02

Whether the Claimant was entitled to the reliefs sought including notice pay, leave, severance and certificate of service

Holding

All reliefs were refused as the suit was not proved

Reasoning

The court observed it was curious that a Claimant dismissed after only a month and a half sought leave for years worked and severance pay. Since the Claimant failed to discharge the burden of proving the allegations of unfair and unprocedural dismissal, no relief was available and each party was to bear its own costs.

p. 2

Legal principles established

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  • Under the Employment Act, the employer has an obligation to prove that the reasons for termination were fair, but the employee bears the burden of proving his allegations of unfair termination

Court orders

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  1. 1.The suit is dismissed for failure of proof
  2. 2.Each party will bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (as invoked by the parties; the Respondent denied the court's jurisdiction but no basis is expressly stated)

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, "Samuel Mwikya Kilonzi v H. Young & Co. (E.A) Limited [2018] KEELRC 1876 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1876/eng@2018-04-26

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