[2021] KEELRC 1943 (KLR)
The court found that although the respondent failed to issue a written contract as required by the Employment Act, 2007, the claimant did not discharge the initial burden of proof to show that an unfair termination of employment had occurred. The claimant failed to provide the exact date of termination or details of...
Source-derived case information.
- Citation
- [2021] KEELRC 1943 (KLR)
- Parties
- Claimant: Simeon Jumba Mnambusi; Respondent: Cygnet Holdings t/a Ferries Bakeries
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 306 of 2017
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Legal Topics
- Unfair Termination, Burden of Proof, Written Contracts, Casual Employment, Statutory Entitlements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Simeon Jumba Mnambusi
Claimant
Cygnet Holdings t/a Ferries Bakeries
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant was unfairly terminated from employment.
- 2 Whether the claimant was a casual employee or entitled to statutory protections under the Employment Act, 2007.
- 3 Whether the respondent was under a statutory duty to provide a written contract.
Ratio Decidendi
The court found that although the respondent failed to issue a written contract as required by the Employment Act, 2007, the claimant did not discharge the initial burden of proof to show that an unfair termination of employment had occurred. The claimant failed to provide the exact date of termination or details of the alleged unfair termination, both in pleadings and oral testimony. Consequently, the court held that the claimant was not a casual employee and was entitled to statutory protections, but the claim for unfair termination failed due to lack of evidence.
Court Disposition
claim dismissed
Orders
- The cause is dismissed for lack of merit.
- Each party to bear own costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 306 OF 2017
SIMEON JUMBA MNAMBUSI...........................................CLAIMANT
v
CYGNET HOLDINGS t/a FERRIES BAKERIES...........RESPONDENT
JUDGMENT
1. Simeon Jumba Mnambusi (the Claimant) sued the Cygnet Holdings t/a Ferries Bakeries (the Respondent) on 10 July 2017 and he stated the Issue in Dispute as:
Unfair termination of employment.
2. The Respondent filed its Statement of Response on 24 August 2017 and witness statement and documents on 30 July 2018.
3. The Cause was heard on 7 December 2020 when the Claimant testified and on 9 December 2020 when the Respondent’s witness testified.
4. The Claimant filed his submissions on 22 March 2021 (should have been filed/served on or before 9 January 2021) while the Respondent had filed its submissions on 18 March 2021.
5. The Court has considered the pleadings, evidence and submissions.
Nature of contractual relationship
6. The Claimant asserted that he was employed as a loader by the Respondent in November 2011 but the Respondent contended that the Claimant was employed intermittently from 2011 to 2014. It was also contended that he was a squad leader who would be given monies to pay other loaders.
7. To support its case the Respondent filed copies of petty cash vouchers and muster roll.
8. The copies of the petty cash vouchers show that the Claimant would be paid for the number of bags he offloaded/transferred. The payments varied from Kshs 232/- to nearly Kshs 11,000/-.
9. The copies of vouchers also evidence that payments were made from 2011 to 2014.
10. Section 9(1) of the Employment Act, 2007 requires the employer to draw up a written contract under certain circumstances. The provision does not limit the circumstances to the type of contractual services offered, whether casual, piece-rate or intermittent.
11. It is clear that the Claimant offered services to the Respondent for more than 3-months. The Respondent was thus under a statutory duty to draw up a written contract setting out the particulars set out in section 10(1) & (2) of the Act. The particulars include job description, form and nature of the contract and hours of work.
12. Since the Respondent did not issue the written contract, the Court invokes section 10(7) of the Employment Act, 2007 to find that the Claimant was not a casual employee and was entitled to the protections/entitlements assured to all employees by the Employment Act, 2007.
Unfair termination of employment
13. The Claimant pleaded his employment was terminated in March 2017. He did not set out the exact date.
14. In the witness statement which was adopted as part of evidence in Court, the Claimant did not disclose the date of termination.
15. Even during oral testimony, the Claimant did not disclose the exact date of termination of employment nor bother to reveal the details and/or name of the person who allegedly terminated his employment unfairly.
16. Pursuant to section 47(5) of the Employment Act, 2007, the Claimant had the initial burden of proving that an unfair termination of employment had occurred. The threshold is a low one.
17. The Claimant did not discharge the burden.
Conclusion and Orders
18. From the foregoing, the Court finds that the Cause has no merit.
19. Parties did not file submissions within agreed timelines and therefore each party to bear own costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 24TH DAY OF MARCH 2021.
RADIDO STEPHEN, MCIARB
JUDGE
APPEARANCES
For Claimant Mr Nyanga/Ms Willie instructed by Nyanga & Co. Advocates
For Respondent Mr Nyamurongi instructed by Nyamurongi & Co. Advocates
Court Assistant Chrispo Aura