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ELRCDismissedCause No. 698 of 2013· [2018] KEELRC 923 (KLR)

Josphat Mbithuka Mutiso v Fidelity Security [2018] KEELRC 923 (KLR)

Employment and Labour Relations Court
4 October 2018
1,571 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 dismissed a security guard's unfair termination claim because his own signed resignation letter proved he left voluntarily.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from 2001, sued for damages for unlawful termination and terminal benefits totaling Kshs. 366,830.28, comprising wages for public holidays worked, payment in lieu of notice, compensation for loss of earnings, service pay and reimbursement for work gear purchased personally. He alleged that after instructing advocates to sue the respondent for workplace injuries, he was denied access to his work station from 1st November 2012 and his services were terminated on 26th November 2012 without justifiable cause, contrary to Section 41 of the Employment Act, 2007. The respondent admitted the employment relationship but contended the claimant voluntarily resigned by letter dated 5th November 2012, forfeiting notice pay, that terminal dues of Kshs. 98,000 were computed, that uniforms and work gear were provided by the respondent, and that the receipts produced were doubtful. The court examined the claimant's resignation letter, which he never denied authoring, and which the respondent acknowledged and accepted on 6th November 2012. It found the claimant resigned voluntarily and that no unlawful termination occurred. Consequently, the prayers for notice, compensation and service pay (the claimant being an NSSF member) were held not tenable, and the work gear claim failed for lack of evidence that purchase was required. The claim was dismissed in its entirety on 4th October 2018.

Key legal issues

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01

Whether the claimant's services were terminated unlawfully

Holding

The claimant resigned voluntarily as evidenced by his own letter dated 5/11/2012 which he never denied writing, and which the respondent acknowledged on 6/11/2012

Reasoning

The court examined the claimant's resignation letter addressed to the Operations Manager, in which he requested his final dues. The claimant never denied authorship of the letter. The respondent acknowledged and accepted the resignation. The court therefore rejected the claimant's assertion that he was dismissed after suing the respondent for work injuries.

p. 3
02

Entitlement to terminal dues, service pay and reimbursement for work gear

Holding

Prayers for notice, compensation and service pay not tenable; work gear claim unsupported by evidence; respondent paid Kshs.98,000 in terminal dues

Reasoning

Having found a voluntary resignation, the court held the consequential prayers untenable. Service pay was unavailable because the claimant was an NSSF member. The work gear claim failed for lack of evidence that purchase was required, the respondent having provided uniforms, and receipts only showed shoe polish purchases.

p. 3

Legal principles established

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  • A claimant who voluntarily resigns is not unlawfully terminated and cannot claim notice pay, compensation or service pay (the latter where an NSSF member)

Court orders

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  1. 1.The claimant's claim is dismissed

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 35

Cases cited (2)

  • Shankar Saklani Vs DHL Forwarding (K) Limited (2012) eKLR
    (2012) eKLR
  • Julie Topirian Njeru vs Kenya Tourist Board (UR)
    Industrial Court Cause Number 868 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007 (not expressly cited in the 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, "Josphat Mbithuka Mutiso v Fidelity Security [2018] KEELRC 923 (KLR)", Case Analysis (2018). Cause No. 698 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/923/eng@2018-10-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.