Tunje v Station (Cause 92 of 2014) [2014] KEIC 14 (KLR)
The bottom line
#An employee who claims unfair dismissal in Kenya must prove when and how it happened — otherwise the claim collapses and desertion is presumed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether CW1 deserted work after suspension on 24.1.2012 or was unfairly dismissed on 28.12.2012
- 2.Whether the reliefs sought in the suit and the counterclaim should issue
Key legal issues
#Whether the Claimant was unfairly dismissed or deserted employment
The Claimant failed to prove dismissal on 28.12.2012; the credible evidence (NSSF statement, suspension letter of 24.1.2012 and RW1's testimony) showed he worked until January 2012 and deserted after the suspension lapsed.
The court applied a balance of probability and weighed the documentary evidence. The Claimant admitted on cross-examination that he did not plead the date of dismissal, while the Respondent's payroll and NSSF records showed he ceased working from January 2012. Under Section 47 of the Employment Act the employee must first plead and prove the date and circumstances of the unfair termination before the burden shifts to the employer. Failing that, the claim of unfair dismissal collapsed.
Reliefs and counterclaim
Compensation, notice pay, service pay and January 2013 salary refused; the Claimant got January 2012 salary and leave pay totalling Kshs.17,000, against which the Respondent's Kshs.10,000 counterclaim for notice pay was set off.
Since desertion rather than unfair dismissal was established, the compensatory and notice reliefs fell away. The Claimant earned salary up to the end of the suspension period on 31.1.2012 and accrued 21 leave days over his 12 months of service. The Respondent's counterclaim succeeded under Section 36 of the Employment Act, requiring payment in lieu of notice by a breaching party, and was set off against the Claimant's award.
Legal principles established
#- The burden of proving unfair termination lies on the employee, and includes pleading and proving the date and circumstances of the termination
- Even absent a written contract, Section 36 of the Employment Act requires a breaching party to pay salary in lieu of notice
Court orders
#- 1.Judgment entered for the Claimant in the sum of Kshs.7,000 (being Kshs.17,000 awarded less the Kshs.10,000 set-off on the counterclaim)
- 2.Claimant awarded Kshs.10,000 salary for January 2012 and Kshs.7,000 in lieu of 21 leave days earned
- 3.Respondent's counterclaim for Kshs.10,000 salary in lieu of notice found to have merit and set off against the Claimant's award
- 4.Each party to bear his or her own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment Act (Sections 35, 36, 41 and 47); first-instance employment claim
Relief refused
#12 months' salary as compensation for unfair dismissal
The Claimant failed to prove unfair termination; the court found he deserted work
Salary in lieu of notice
He was the one who deserted work
Service pay and salary for January 2013
Found not entitled after the desertion finding
Costs
Each party shall bear his or her own costs because they all succeeded in their respective claims.
Quotable passages
#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 this case, the Claimant did not discharge that burden of proving that he was unfairly dismissed on 28.12.2012.
Only after the employee has discharged that burden should the burden of proof shift to the employer to prove substantive and procedural fairness.
For the reasons stated above stated above, judgment is entered for the Claimant in the sum of Kshs.7000. Each party shall bear his or her own costs because they all succeeded in their respective claims.
Issues in the judgment
#Paragraph numbering is irregular - the numbering '5' is used twice in the defence case section before jumping to 10
Typographical errors in the judgment, e.g. 'eficient' for 'efficient' and 'sett ofi' for 'set off'
The final award of Kshs.7,000 reflects a set-off of the Kshs.10,000 counterclaim against the Kshs.17,000 award, but the set-off arithmetic is not expressly spelled out in the disposition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tunje v Station (Cause 92 of 2014) [2014] KEIC 14 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/14/eng@2014-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.