Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowed· [2019] KEELRC 315 (KLR)

Michael Mwangi Wamwea v Brinks Security Services Limited [2019] KEELRC 315 (KLR)

Employment and Labour Relations Court
14 November 2019
NMNzioki wa Makau
1,863 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer that skips court and offers no evidence loses an unfair termination case, even against a worker's verbal testimony.

What this practically means

#

Executive summary

#
The Claimant sued the Respondent for unfair and unlawful termination of his employment as a guard, averring he was employed on 31st March 2012 at Kshs. 10,100/- per month and was verbally terminated on 31st March 2017 by the Respondent's manager without notice, show cause or hearing. He sought general damages, salary arrears for March 2017, notice pay, leave pay and costs. The Respondent, which filed a defence and counterclaim for one month's pay in lieu of notice, denied terminating the Claimant, asserting the Safaricom contract had ended and the Claimant was directed to report to the head office for redeployment but failed to do so, thereby deserting employment. The Claimant testified; the Respondent's case closed for non-attendance despite service. The Respondent nonetheless filed submissions relying on Sections 109 of the Evidence Act and 47(5) of the Employment Act, and various authorities, contending the Claimant had not proved verbal termination and was a deserter. The court found it difficult to believe the Respondent, which deliberately failed to adduce evidence, and held that on the balance of probabilities the Claimant was verbally terminated as he stated. The Claimant, however, failed to prove entitlement to leave as he had not worked more than three months. The counterclaim was not proved and was dismissed with no order as to costs. Judgment was entered for the Claimant for one month's salary in lieu of notice, one month's salary as compensation for unlawful termination, costs, interest at court rates, and a certificate of service.

Key legal issues

#
01

Whether termination occurred as alleged by the Claimant

Holding

On the balance of probabilities, the Claimant was verbally terminated as he stated; the Respondent's defence of redeployment was unsupported by evidence

Reasoning

The Claimant testified on oath that he was verbally dismissed by the Respondent's manager. The Respondent, though it filed a defence and submissions, failed to attend or adduce evidence to counter the Claimant's account. The court found the Claimant's testimony more probable and rejected the Respondent's unproven redeployment narrative, which would in any event have required written communication.

p. 3
02

Entitlement to leave pay

Holding

Claimant was not entitled to leave pay as he had not worked more than 3 months

Reasoning

The claim for unpaid annual leave failed because the Claimant could not prove he had worked a sufficient period to accrue the leave claimed. The Respondent had also pleaded that the Claimant took all his leave days before leaving employment.

p. 3
03

Respondent's counterclaim for notice pay

Holding

The counterclaim was not proved and was dismissed

Reasoning

The Respondent sought one month's pay in lieu of notice from the Claimant on the basis of desertion, but no evidence was led in support of the counterclaim as the Respondent did not attend the hearing. It was therefore dismissed with no order as to costs.

p. 3

Legal principles established

#
  • Where an employer alleges redeployment but fails to adduce evidence and issues no written communication, the court will accept the employee's sworn testimony that he was verbally terminated, on a balance of probabilities
  • An employee claiming leave must show he worked long enough to accrue the leave

Court orders

#
  1. 1.Judgment entered for the Claimant against the Respondent for one month's salary in lieu of notice of Kshs. 10,100/-
  2. 2.One month's salary as compensation for unlawful termination of Kshs. 10,100/-
  3. 3.Costs of the suit
  4. 4.Interest on the sums awarded at court rates from date of judgment till payment in full
  5. 5.Certificate of service

Authorities

#

Legislation

  • Employment ActSection 41(2)
  • Employment ActSection 49(4)(e)
  • Employment ActSection 47(5)
  • Employment ActSection 43
  • Employment ActSection 45
  • Evidence ActSection 109

Cases cited (4)

  • Kenya Breweries Limited v Kiambu General Transport Agency Limited
    [2000] eKLR
  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Linet Akasa Shikoli v Lilian Otundo
    [2014] eKLR
  • Evans Kamadi Misango v Barclays Bank of Kenya Limited
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act); no specific constitutional provision cited

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Michael Mwangi Wamwea v Brinks Security Services Limited [2019] KEELRC 315 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/315/eng@2019-11-14

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