[2019] KEELRC 546 (KLR)
The court found that neither party placed any evidence before it, not even unrebutted evidence, to support their respective positions. In the absence of evidence, and in accordance with section 47(5) of the Employment Act, 2007, the claimant failed to discharge the burden of proving unfair termination. Consequently,...
Source-derived case information.
- Citation
- [2019] KEELRC 546 (KLR)
- Parties
- Claimant: Boniface Odondi Ajode; Respondent: China Road & Bridge Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1324 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim dismissed except for issuance of certificate of service.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Burden of Proof, Service Pay, Certificate of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Odondi Ajode
Claimant
China Road & Bridge Corporation
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment.
- 2 Whether the claimant is entitled to termination benefits, unpaid salary, and certificate of service.
- 3 Whether the claimant is entitled to service pay and annual leave pay.
Ratio Decidendi
The court found that neither party placed any evidence before it, not even unrebutted evidence, to support their respective positions. In the absence of evidence, and in accordance with section 47(5) of the Employment Act, 2007, the claimant failed to discharge the burden of proving unfair termination. Consequently, the court held that this was not a case of unfair termination of employment, and remedies such as compensation and pay in lieu of notice were not available to the claimant. The claim for breach of contract regarding annual leave also failed for lack of evidential foundation. The claimant was not entitled to service pay as he was a registered contributor to the National Social...
Court Disposition
Claim dismissed except for issuance of certificate of service.
Orders
- The cause is dismissed with no order as to costs.
- The respondent shall issue a certificate of service to the claimant within 21 days.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1324 OF 2016
BONIFACE ODONDI AJODE............................................CLAIMANT
v
CHINA ROAD & BRIDGE CORPORATION.............RESPONDENT
JUDGMENT
1. Boniface Odondi Ajode (Claimant) instituted legal proceedings against China Road & Bridge Corporation (Respondent) and he stated the Issues in Dispute as
Unlawful termination of Boniface Odondi Ajode Termination Benefits
Certificate of Service
Unpaid salary
2. Although served, the Respondent did not enter an appearance or file a Response within the prescribed time, and on 9 January 2017, the Court directed that the Cause proceeds to formal proof.
3. On 14 September 2018, the Respondent moved the Court seeking leave to file a Responseout of time and to be allowed to defend the Cause.
4. The parties consented to the application and the consent was adopted by the Court on 31 October 2018 paving way for the hearing on 18 September 2019.
5. When the Cause was called out for hearing on the aforementioned date, the parties informed the Court that they had agreed to have the Cause determined on the basis of the record, and submissions to be filed.
6. The Claimant filed his submissions on 7 October 2019 (should have been filed and served before 4 October 2019) while the Respondent’s submissions were not on file by this morning.
Unfair termination of employment
7. The Claimant pleaded case was that his employment was unfairly terminated around 14 June 2016 without any reasonable cause or justification.
8. The Respondent’s plea in defence was that the Claimant deserted work around 9 June 2016 after making demands in relation to an accident he had been involved in the course of work and that when requested to explain the failure to report to work, he responded that he was attending to personal matters.
9. The Claimant was advancing a cause of action for unfair termination of a contract while the Respondent was contending repudiation of contract by the Claimant.
10. The parties opted not to place any evidence before the Court.
11. In terms of Rule 21 of the Employment and Labour Relations Court (Procedure) Rules, 2016, parties are expected to have filed affidavits containing the evidence to form part of the record before opting to proceed on the basis of documentary evidence.
12. Pleadings and witness statements which have not been adopted as evidence on oath cannot be considered as evidence.
13. The Court in this regard has no evidence, not even unrebutted evidence before it to enable it to determine the veracity of the pleaded versions advanced by the parties and therefore is unable to make a finding as to whether this was a case of unfair termination of employment or repudiation of contract.
14. Since section 47(5) of the Employment Act, 2007 places the first onus on a Claimant to prove that there was unfair termination of employment and the Claimant did not present evidence to discharge that burden, the Court has no option but to hold that this was not a case of unfair termination of employment.
15. Compensation and pay in lieu of notice as remedies, therefore, do not avail the Claimant.
Breach of contract
16. The Claimant also alleged breached of contract in that he did not take his annual leave.
17. Without any evidential foundation to support this alleged breach, the Court is unable to find for the Claimant.
Service pay
18. The Claimant filed copies of his pay slips. The pay slips show that the Claimant was a registered contributor with the National Social Security Fund.
19. In terms of section 35(5) & (6) of the Employment Act, 2007, the Claimant would not be eligible for service pay.
Certificate of Service
20. A certificate of service is a statutory entitlement and because the Respondent admitted an employment relationship, it should issue one to the Claimant within 21 days.
Conclusion and Orders
21. Save for a certificate of service, the Court finds no merit in the Cause herein and orders it dismissed with no order as to costs.
Delivered, dated and signed in Nairobi on this 25th day of October 2019.
Radido Stephen
Judge
Appearances
For Claimant Samuel Nyambane & Co. Advocates
For Respondent Minishi & Associates Advocates
Court Assistant Lindsey