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ELRCPartially AllowedCause No 1760 of 2013· [2016] KEELRC 882 (KLR)

William Onyango Rubia v Makini Security Services [2016] KEELRC 882 (KLR)

Employment and Labour Relations Court
22 July 2016
1,231 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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William Onyango Rubia, a security guard employed by Makini Security Services, sued for unfair termination following the end of his employment on 7th October 2013, claiming notice pay, severance pay, leave pay, house allowance, various overtime claims, underpayment, transport, twelve months' compensation and a certificate of service. The Respondent denied the pleaded employment date, asserted that the Claimant deserted duty, and denied liability. The Court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and whether the remedies sought were due. On the first issue, the Court found that the Claimant's own testimony - that he stayed away after a cheque went missing at the guard house and was told by his supervisor not to return unless he found it - supported the Respondent's account of desertion, and held there was no evidence of unlawful termination. Claims for compensation for unlawful termination and notice pay were therefore dismissed. On the employment date, the Court held that the Respondent's 'Guards Contract Application Document' was not a letter of appointment, the employment was oral, and under Sections 9(2) and 10(6) of the Employment Act it adopted the Claimant's date of 5th May 2011, rejecting the alleged break in service for want of documentary support. House allowance was awarded at 15% of basic salary for 28 months (Kshs. 27,300) and leave pay for 2 years and 4 months (Kshs. 12,209), totalling Kshs. 39,509. Severance, overtime, underpayment and transport claims failed for want of proof. The Court ordered a certificate of service, interest at court rates from the date of the award, and each party to bear their own costs.

Key legal issues

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01

Whether the Claimant was unlawfully terminated or deserted duty

Holding

The Claimant deserted duty; no unlawful termination was proved, so claims for compensation and notice pay failed.

Reasoning

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.

p. 2
02

Effective date and terms of employment where no written contract exists

Holding

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.

Reasoning

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.

p. 3
03

House allowance

Holding

House allowance awarded at 15% of basic salary for 28 months, amounting to Kshs. 27,300, as salary was not consolidated.

Reasoning

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.

p. 3
04

Leave pay and other monetary claims

Holding

Leave pay for 2 years and 4 months awarded at Kshs. 12,209; severance, overtime, underpayment and transport claims dismissed for want of proof.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The Respondent to issue the Claimant with a certificate of service
  3. 3.Interest on the award at court rates from the date of the award until payment in full
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 45(3)
  • Employment Act, 2007Section 9(2)
  • Employment Act, 2007Section 10(6)
  • Employment Act, 2007Section 31(1) and (2)

Cases cited (1)

  • Samuel G. Momanyi v SDV Transami & Another
    [2012] eKLR

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.