Wycliffe Makhoha Ouma v Security Guards Services Limited [2014] KEELRC 859 (KLR)
The bottom line
#A Kenyan court ruled a security guard was unfairly dismissed without a hearing, winning notice pay, gratuity for 28 years' service and maximum compensation.
What this practically means
#Executive summary
#Key legal issues
#Date of employment
The claimant was employed on 2nd February 1982; the respondent failed to disprove this
Section 9 of the Employment Act requires written contracts, and under section 10(7) the employer bears the burden of proving terms where no written contract is produced. The respondent produced no contract specifying February 1990. The NSSF certificate proved only registration (1991) and covered contributions only for 1991-1998, so it could not reflect the full employment period.
Alleged pay slip collection policy
No proof that the policy existed or was brought to the claimant's attention
Although section 20(1) of the Employment Act requires written statements with payment of wages, the respondent did not produce any written particulars of the alleged salary payment policy under section 10, did not show the claimant knew of it, and did not explain why many other employees collected salaries at the bank without pay slips.
Participation in the bank disturbance
The claimant did not participate in the disturbance
The claimant denied involvement, gave a detailed account, and obtained letters from Mr. Oyaro - the very person who made the complaint - absolving him. The bank's letters were produced by the respondent itself, constituting the best evidence of the claimant's innocence.
Unfair termination and remedies
Constructive and unfair termination established; claimant entitled to notice, service gratuity and maximum 12 months' compensation
The warning letter was pre-determined before the claimant was heard, and refusal to sign led to him being barred from work and required to return uniforms - a constructive dismissal. Without a hearing or valid reason the termination was unfair. Given 28 years' service, maximum compensation of 12 months was awarded, plus one month's notice and service gratuity at 18 days' pay per year under the Regulation of Wages (Protective Security) Order 1998.
Rate of pay for terminal benefits
Basic pay plus house allowance, totalling Kshs. 8,651.00
Section 49 of the Employment Act sets the rate as gross monthly wage or salary at termination. Regular remuneration excludes one-off payments such as leave pay. From the pay slip produced, the appropriate components were basic pay and house allowance.
Legal principles established
#- Where an employer fails to produce a written contract, the burden lies on the employer to prove or disprove an alleged term of employment including the date of employment
- Terminating an employee for refusal to sign a warning letter issued without a hearing and without valid reason amounts to constructive and unfair dismissal
- Terminal dues are computed on basic pay plus house allowance, excluding one-off payments such as leave pay
- An employee covered by a wages order providing service gratuity is entitled to it irrespective of NSSF membership, and wages order terms may not be varied to the employee's disadvantage
Court orders
#- 1.One month's salary in lieu of notice of Kshs. 8,651.00
- 2.Dismissal of the claims for accrued leave, weekday overtime and severance pay
- 3.Service gratuity of Kshs. 145,336.80 for 28 years worked
- 4.Maximum compensation of 12 months' salary amounting to Kshs. 103,812.00 for unfair termination
- 5.Costs of the claim to the claimant
- 6.Interest to accrue from the date of judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Labour Institutions Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wycliffe Makhoha Ouma v Security Guards Services Limited [2014] KEELRC 859 (KLR)", Case Analysis (2014). Memorandum of Claim dated 21st February 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/859/eng@2014-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.