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ELRCPartially AllowedNot stated in judgment· [2016] KEELRC 1757 (KLR)

Samuel Maroko Ogana v Inter Security Services Limited [2016] KEELRC 1757 (KLR)

Employment and Labour Relations Court
5 February 2016
1,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, a security guard employed by the Respondent from 31 January 2010, sued for unfair termination and quantified dues of Kshs 212,843/20 comprising underpayments, uniform refund, overtime, accrued leave, pay in lieu of notice and compensation. The Respondent closed its case without calling witnesses after an adjournment application was rejected. The Court framed four issues: unfairness of dismissal, underpayment, overtime, and remedies. On unfair termination, the Court held the Claimant failed to discharge the low threshold burden under section 45(7) of the Employment Act, 2007, since he led no testimony on why the dismissal was unfair; the complaint was dismissed and compensation declined. The underpayment claim failed for want of particulars on when wage changes occurred. The overtime claim succeeded: the Claimant's testimony on 12-hour shifts was unchallenged, the Respondent as custodian of employment records produced no records to rebut it, and the Court took judicial notice that security guards work 12-hour shifts. On remedies, uniform refund and house allowance were declined for lack of evidence. The Court awarded admitted and probable dues totalling Kshs 26,236/30: one month pay in lieu of notice (Kshs 6,204/-), accrued leave (Kshs 13,227/-), holiday pay (Kshs 2,624/-) and overtime (Kshs 4,181/30). The Claimant was awarded costs of Kshs 15,000/-. Judgment delivered in Nakuru on 5 February 2016 by Radido Stephen, Judge.

Key legal issues

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01

Whether the dismissal was unfair

Holding

Complaint for unfair termination dismissed; Claimant failed to discharge the burden under section 45(7)

Reasoning

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.

p. 2
02

Overtime

Holding

Claimant established a foundation for the overtime claim; awarded as pleaded at Kshs 4,181/30

Reasoning

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.

p. 2
03

Accrued leave

Holding

Awarded Kshs 13,227/- as pleaded, finding the Claimant's calculations more probable than the Respondent's admitted figure

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Dismissal of the complaint for unfair termination of employment
  2. 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. 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

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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, "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.