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ELRCDismissedNot stated in judgment· [2018] KEELRC 1891 (KLR)

Charles Kariuki Mwangi v Intersecurity Services Limited [2018] KEELRC 1891 (KLR)

Employment and Labour Relations Court
11 April 2018
NMNzioki wa Makau
2,146 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 lost his entire terminal dues claim because he could not prove the amounts he said his employer owed him.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from July 2010 and deployed at Gatitu Petrol Station, sued for unlawful termination in November 2016. He sought one month's salary in lieu of notice, underpayment of wages, severance pay, house allowance, annual leave, off days for six years and twelve months' salary. The Respondent's defence was that the NETCO service contract was cancelled, the Claimant was asked by letter dated 2nd December 2016 to report to head office for redeployment, he failed to do so or attend a disciplinary hearing, and his services were terminated for absence from duty under section 44 of the Employment Act. The Respondent called no witness. The Claimant testified that he was dismissed by phone, denied receiving redeployment or disciplinary letters, and relied on union correspondence and NSSF records. In submissions, the Claimant relied on Nicholas Otinyu Muruka v Equity Bank Ltd on gross misconduct and due process under sections 41, 43, 45 and 49 of the Employment Act; the Respondent relied on Lamathe Hygiene Food and Fred Makori Ondari on the burden of proving claims. The court held that Employment Act claims are limited to three years, so half the claim was statute-barred, and the balance was in the nature of special damages requiring particularised pleading and proof, none of which was adduced. The Claimant's allegations remained unproved. The suit was dismissed for want of proof with no order as to costs.

Key legal issues

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01

Gross misconduct justifying summary dismissal

Holding

The court did not make an express finding on gross misconduct as it dismissed the suit for want of proof of the monetary claims; the dispute over whether the Claimant failed to report for redeployment was contested

Reasoning

The Respondent relied on section 44 of the Employment Act asserting absence from duty after failing to report for redeployment. The Claimant denied receiving any letters. The Respondent called no witness. The court focused its determination on proof of the terminal dues claims rather than the fairness of dismissal, since the quantum claims were unproved and partly statute-barred.

p. 3
02

Burden of proof of terminal dues claims

Holding

The Claimant failed to prove his claims for underpayment, leave, off days, severance and house allowance; they remained allegations

Reasoning

The court held that Employment Act claims are limited to 3 years, so half the claim was statute-barred. The balance was special damages requiring particularised pleading and proof. No gazette notice or particulars were adduced to prove underpayment or non-taking of leave. Applying the principle that he who alleges must prove, the Claimant discharged no evidentiary burden and the suit was dismissed.

p. 3

Legal principles established

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  • He who alleges must prove; terminal dues claims are in the nature of special damages and must be pleaded with particularity and proved
  • Terminal dues claims under the Employment Act are limited to 3 years

Court orders

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  1. 1.The suit is dismissed for want of proof
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 44
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 47(1)
  • Employment Actsection 49(1)(c)
  • Regulation of Wages (General) Amendment Order 2015minimum wage order

Cases cited (3)

  • Nicholas Otinyu Muruka v Equity Bank Ltd
    [2013] eKLR
  • Lamathe Hygiene Food v Wesley Patrick Simasi Wafula & 8 Others
    [2016] eKLR
  • Fred Makori Ondari v The Management Committee of the Ministry of Works Sports Club
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (court not expressly stated in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles Kariuki Mwangi v Intersecurity Services Limited [2018] KEELRC 1891 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1891/eng@2018-04-11

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