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ELRCDismissedNot stated in the judgment

Mukhusi v Radar Limited (Cause 971 of 2018) [2024] KEELRC 1113 (KLR)

Employment and Labour Relations Court
9 May 2024
AJABUODHA NELSON JORUM
1,321 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 upheld a guard's summary dismissal for reporting to work drunk, ruling employees must prove unfair termination with real evidence.

What this practically means

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Executive summary

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The claimant, a security guard employed from 1st March 1999, sued the respondent alleging that his summary dismissal on 23rd March 2018 was without notice, reasons, hearing or terminal dues, contrary to natural justice and sections 41, 43, 44 and 45 of the Employment Act. He also claimed house allowance, overtime and underpayments for his 228 months of service. The respondent admitted the employment but asserted that the claimant was summarily dismissed for gross misconduct after reporting to work late while drunk on 19th March 2018 and failing to report the following day, producing prior warning letters and arguing that a summarily dismissed employee was not entitled to salary in lieu of notice. The suit was disposed of by written submissions; only the claimant filed submissions. The court found the warning letters unrebutted and held that lateness while intoxicated and unauthorised absence justify summary dismissal. The claimant's assertion that he was never told the reasons for dismissal was contradicted by the written dismissal letter. An explanation advanced by counsel in submissions - that the claimant was visiting a sick child - was held irregular and inadmissible, as counsel cannot adduce evidence in submissions. Claims for house allowance, overtime and underpayment were disallowed for lack of proof, the payslips showing overtime and housing allowance were paid. The claimant was held to have failed to discharge his burden under section 47(5) of the Employment Act. The claim was dismissed with costs on 9th May 2024.

Questions the Court framed

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

  1. 1.Whether the claimant was summarily dismissed for gross misconduct with justifiable reasons and in accordance with due process
  2. 2.Whether the claimant was entitled to compensation for unfair termination, salary in lieu of notice, house allowance, overtime and underpayment
  3. 3.Whether the claimant discharged his burden of proof under section 47(5) of the Employment Act

Key legal issues

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01

Fairness and justification of the summary dismissal

Holding

The dismissal was justified: the claimant had prior warning letters for lateness and drunkenness and was summarily dismissed in writing after reporting late while drunk and failing to report the next day

Reasoning

The court found the respondent produced previous warning letters which the claimant never refuted. The claimant's bare allegation of dismissal without reason could not stand against documentary evidence, and the dismissal was communicated in writing, so he knew the reasons.

p. 3
02

Burden of proof under section 47(5) Employment Act

Holding

The claimant failed to discharge the statutory burden of proving unfair termination

Reasoning

Section 47(5) places the burden on the employee to prove unfair or unlawful termination. In the absence of sufficient evidence displacing the employer's allegations of gross misconduct, the claim failed on the merits.

p. 3
03

Evidentiary status of counsel's submissions

Holding

Counsel's submission that the claimant had informed his supervisor he went to see a sick child was irregular and inadmissible as evidence

Reasoning

The allegation was neither pleaded nor contained in the witness statement. Submissions cannot be used to adduce evidence, so the sick-child explanation carried no evidentiary weight.

p. 3
04

Unproven heads of claim (house allowance, overtime, underpayment)

Holding

These heads were disallowed for lack of proof

Reasoning

Though pleaded, the claimant never addressed them in his witness statement or provided supporting evidence. The payslips on record showed a constant overtime figure and a housing allowance, contradicting the claim.

p. 3

Legal principles established

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  • Absence from work without authority and reporting to work intoxicated are grounds for summary dismissal
  • Counsel cannot introduce evidence through written submissions; allegations not pleaded or stated in a witness statement are inadmissible as evidence

Court orders

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  1. 1.The claim is found without merit and is dismissed with costs
  2. 2.It is so ordered

The bench

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

AJ
majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction (memorandum of claim filed in the Employment and Labour Relations Court)

Relief refused

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Compensation for unfair termination and terminal dues

The dismissal was for gross misconduct (lateness while drunk and absence from work) and the claimant failed to discharge his burden of proof

p. 3

House allowance, overtime and underpayment claims

No evidence provided; payslips showed housing allowance and overtime payments were made

p. 3

Costs

The claim is dismissed with costs to the respondent

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 claim is found without merit and is hereby dismissed with costs.
p. 3Disposition - dismissal of the claim
Absence from work without authority or lawful cause and further reporting to work too intoxicated to work is a ground for summary dismissal.
p. 3Grounds for summary dismissal
he has failed to discharge the burden of proof cast upon him by section 47(5) of the Employment Act.
p. 3Burden of proof in unfair termination claims
The allegation by Counsel is irregular and cannot be considered as evidence.
p. 3Counsel cannot adduce evidence in submissions
These heads of claim will therefore be disallowed for lack of proof.
p. 3Claims disallowed for lack of proof

Issues in the judgment

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minor

The memorandum of claim is dated 10th February 2022 but the response is dated 23rd November 2018, an internal chronological inconsistency

minor

The delivery date line is internally inconsistent

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, "Mukhusi v Radar Limited (Cause 971 of 2018) [2024] KEELRC 1113 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1113/eng@2024-05-09

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