David Muthui Ndungu v Riley Falcon Security Ltd [2016] KEELRC 1276 (KLR)

The Respondent argued the Claimant had failed to prove his case on a balance of probabilities, citing Stephen Wasike Wakhu & Ar v Security Express Ltd. The Court accepted the general principle but held that in unfair termination disputes the Employment Act, 2007 is a complete code displacing the general evidential rules. The initial burden sits in section 47(5); once the employee passes that test, the employer must prove the reasons for termination (s 43), their validity and fairness (s 45) and entitlements (s 10(3)).

The Claimant testified he was employed on 24 December 2006 as a security guard without a written contract, producing a job identification card embossed with the Respondent's name and pay slips marked RFSSL-Kisumu. His testimony was unchallenged as the Respondent closed its case without witnesses. The Court applied section 10(7), holding oral contracts are contemplated and uncontroverted oral testimony suffices where the employer failed to issue a written contract.

The Claimant's unchallenged testimony was that his services were no longer required from 30 April 2014 because the Respondent's contract with OrPower Inc. had ended. The Court found the separation was not attributable to misconduct, poor performance or physical incapacity, and being involuntary, it constituted redundancy as recognised by law.

Section 40 requires an employer to notify the employee and the local Labour Officer in writing at least one month in advance, pay outstanding dues and observe fair selection criteria, with union notification where applicable. There was no suggestion of compliance, so the termination was procedurally unfair. Further, the employer bore the burden under section 45(2)(b)(ii) to demonstrate operational requirements; the Respondent led no evidence, so the redundancy was also substantively unfair.

The Court awarded notice pay for breach of sections 35 and 40, April 2014 wages under sections 18(4) and 49(1)(b), accrued leave and uniform refunds on unchallenged testimony, and overtime because the Respondent produced no employment records. Severance pay was awarded as a statutory requirement for redundancy. Considering length of service and the unfairness findings, 12 months' gross wages compensation was deemed fair and appropriate. Travelling allowance, the salary deduction claim and house allowance failed for want of evidential or legal basis.