Samuel Maroko Ogana v Inter Security Services Limited [2016] KEELRC 1757 (KLR)
The bottom line
#A Kenyan security guard won unpaid dues and overtime because his employer kept no records, but lost his unfair dismissal claim for lack of evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was unfair
Complaint for unfair termination dismissed; Claimant failed to discharge the burden under section 45(7)
The Claimant gave no testimony as to why the dismissal was unfair. His evidence was limited to a 3-day suspension and a phone inquiry about wages after which he never returned to work. The Court could not determine on that material whether an unfair termination occurred, so the statutory burden was not met.
Overtime
Claimant established a foundation for the overtime claim; awarded as pleaded at Kshs 4,181/30
The Claimant's testimony of 6.00am to 6.00pm working hours, with clocking in and out, was not challenged or controverted. The Respondent, custodian of employment records, did not produce records to rebut it. The Court also took judicial notice that security guards in Kenya work 12-hour shifts.
Accrued leave
Awarded Kshs 13,227/- as pleaded, finding the Claimant's calculations more probable than the Respondent's admitted figure
The Respondent admitted only Kshs 5,227/- but the Court found this incorrect since the Claimant had served just under 2 years and would be entitled to about 2 months' wages in commuted leave. The Claimant's pleaded figure of Kshs 13,227/- was found more probable.
Legal principles established
#- Under section 45(7) of the Employment Act, 2007, an employee bears a low threshold burden to show that unfair termination occurred before the employer is called upon to prove valid and fair reasons
- An employer, as custodian of employment records, must produce records to rebut unchallenged employee testimony on hours of work
- The law grants each employee, as a minimum, 21 days annual leave with full pay
Court orders
#- 1.Dismissal of the complaint for unfair termination of employment
- 2.Award to the Claimant of dues admitted by the Respondent: 1 month pay in lieu of notice Kshs 6,204/-; accrued leave Kshs 13,227/-; holiday pay Kshs 2,624/-; overtime Kshs 4,181/30; total Kshs 26,236/30
- 3.Costs of Kshs 15,000/- to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 45 referred to in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Maroko Ogana v Inter Security Services Limited [2016] KEELRC 1757 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1757/eng@2016-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.