[2018] KEELRC 1148 (KLR)
The court found that the claimant did not discharge the burden of proof required to establish unfair or wrongful termination. The claimant admitted in evidence that she was paid house allowance and overtime, and conceded membership in NSSF, making her claim for service pay unsustainable. The respondent had provided...
Source-derived case information.
- Citation
- [2018] KEELRC 1148 (KLR)
- Parties
- Claimant: Grace Mwethya Mulu; Respondent: Uzuri Foods Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 482 of 2012
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Claim dismissed with no order as to costs. Claimant to be paid terminal dues upon signing computation form.
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Wrongful Dismissal, Termination Procedure, Employee Benefits, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Mwethya Mulu
Claimant
Uzuri Foods Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly or wrongfully terminated from employment.
- 2 Whether the claimant is entitled to terminal dues and other benefits claimed.
Ratio Decidendi
The court found that the claimant did not discharge the burden of proof required to establish unfair or wrongful termination. The claimant admitted in evidence that she was paid house allowance and overtime, and conceded membership in NSSF, making her claim for service pay unsustainable. The respondent had provided reasons for termination and computed terminal dues, which remained available for collection. Consequently, the court dismissed the claim for unfair termination and other benefits but directed that the claimant be paid her terminal dues upon signing the computation form.
Court Disposition
Claim dismissed with no order as to costs. Claimant to be paid terminal dues upon signing computation form.
Orders
- The claim is dismissed with no order as to costs.
- The claimant shall be paid her terminal dues as conceded by the respondent upon signing the computation form.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE 482 OF 2012
GRACE MWETHYA MULU........................................CLAIMANT
VERSUS
UZURI FOODS LIMITED......................................RESPONDENT
JUDGEMENT
1. The claimant averred that she was employed by the respondent as a baker for six years and two months at a monthly salary of Kshs 8,789/= per month. She worked until 20th March, 2011 when she alleged the respondent terminated her services without any explanation or notice. The claimant further averred that upon termination the respondent never paid her terminal dues.
2. In response to the claim, the respondent averred that it lawfully terminated the claimant’s services. The respondent further averred that it warned the claimant on poor performance both orally and in writing vide letters dated 24th September, and 12th November, 2010. The respondent further averred that the benefits to be paid to the claimant were computed but the claimant refused to collect her terminal dues as indicated in the termination letter.
3. In her oral evidence in Court, the claimant repeated the averments in her memorandum of claim and further stated that she was once accused and warned of poor production. She further stated on cross-examination that she was paid overtime. The claimant further stated that she was paid house allowance and further that her employer used to remit NSSF however, her statement was not up todate.
4. Respondent’s witness Mr William Macharia informed the court that the claimant had issues concerning her performance and that there had been previous warning letters. He further stated that the claimant was furnished with reasons for the termination of her services. Mr Macharia further stated that the claimant’s dues were computed and were still available for collection upon signing the computation form.
5. A claim for unfair termination of service or wrongful dismissal in essence questions the validity of the reason(s) for dismissal and or the fairness of the process as required under the Employment Act. The claimant in her pleadings and evidence does not refute or question the reason for her dismissal which was because of poor performance. She further does not question the process followed in terminating her services.
6. The burden of proof that unfair termination took place rests on the employee. The claimant did not seem to have discharged this burden. In her memorandum of claim, she makes claim for house allowance and overtime yet in her evidence in court she admitted that these were paid. The claimant’s claim for service pay is further not sustainable since she conceded that she was a member of NSSF.
7. In conclusion, the court finds and holds that the claimant has failed to prove her claims against the respondents. The court will however direct that the claimant be paid her terminal dues as conceded by the respondent upon the claimant signing the computation form. The claim herein however, stands dismissed with no order as to costs.
8. It is so ordered.
Dated at Nairobi this 21st day of September, 2018
Abuodha J. N.
Judge
Delivered at Nairobi this 21st day of September, 2018
Abuodha J. N.
Judge
In the presence of:-
..........................................for the Claimant
.....................................for the Respondent.