William Onyango Rubia v Makini Security Services [2016] KEELRC 882 (KLR)
The bottom line
#A Kenyan court ruled a security guard left his job voluntarily, not fired, but still won house allowance and leave pay because his employer kept no proper records.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unlawfully terminated or deserted duty
The Claimant deserted duty; no unlawful termination was proved, so claims for compensation and notice pay failed.
The Claimant pleaded unlawful termination but testified that he left employment after a cheque went missing at the guard house, having been told by his supervisor not to return unless he found it. The Respondent's account of desertion was consistent with that testimony, and no evidence of termination emerged.
Effective date and terms of employment where no written contract exists
The Court adopted the Claimant's pleaded date of 5th May 2011 as the effective date, rejecting the Respondent's pleaded date of 6th May 2012 and the alleged break in service.
The document produced by the Respondent, a 'Guards Contract Application Document', was held not to qualify as a letter of appointment, making the employment oral. Under Sections 9(2) and 10(6) of the Employment Act, the burden of a written contract lies on the employer, failing which the Court adopts the employee's testimony. The alleged break in employment was unsupported by documentary evidence.
House allowance
House allowance awarded at 15% of basic salary for 28 months, amounting to Kshs. 27,300, as salary was not consolidated.
Section 31(1) and (2) of the Employment Act obliges employers to provide housing or a rent sum unless the contract consolidates a housing element. The Respondent produced no payslip showing consolidation, and the salary figure appeared to cover only basic pay.
Leave pay and other monetary claims
Leave pay for 2 years and 4 months awarded at Kshs. 12,209; severance, overtime, underpayment and transport claims dismissed for want of proof.
The Respondent produced no leave records to counter the leave claim, so it succeeded. No basis was laid for severance pay, and the overtime, underpayment and transport claims were not proved by evidence.
Legal principles established
#- Where an employer fails to draw and issue a written employment contract as required by Section 9(2) of the Employment Act, the Court may adopt the employee's testimony on the terms of employment under Section 10(6).
- House allowance at 15% of basic salary may be awarded where the employer produces no payslip showing that the salary was consolidated to include house allowance.
Court orders
#- 1.Award to the Claimant of house allowance for 28 months of Kshs. 27,300 and leave pay for 2 years and 4 months of Kshs. 12,209, totalling Kshs. 39,509
- 2.The Respondent to issue the Claimant with a certificate of service
- 3.Interest on the award at court rates from the date of the award until payment in full
- 4.Each party to bear their own costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Onyango Rubia v Makini Security Services [2016] KEELRC 882 (KLR)", Case Analysis (2016). Cause No 1760 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/882/eng@2016-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.