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ELRCDismissedCause No 744 of 2015· [2019] KEELRC 1307 (KLR)

Vitalis Ndege Ouyo v K K Security Group of Companies [2019] KEELRC 1307 (KLR)

Employment and Labour Relations Court
21 June 2019
JRJames Rika
919 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 testimony kept changing, showing that credibility can decide an employment case.

What this practically means

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Executive summary

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The Claimant, employed as a Security Guard from 2nd March 1996 at a monthly salary of Kshs. 12,549, sued the Respondent claiming his contract was terminated without notice or valid reason on 14th November 2014. He sought one month's salary in lieu of notice, unpaid annual leave for 2013 and 2014, public holiday pay for 19 years, 12 months' salary as compensation for unfair termination, a declaration that termination was unfair, costs, and interest, totalling Kshs. 366,963 in monetary reliefs. The Respondent's position was that the Claimant himself requested retirement on medical ground on 13th November 2014, presenting a medical report from Dr. Luke Odiero indicating high blood pressure; the Respondent accepted the request and retired him on medical ground, with terminal dues computed at a negative Kshs. 180,114 due to an outstanding Sacco loan. Both parties testified on 27th October 2018. The Court found the Claimant not a truthful witness: he denied writing the retirement request letter despite management comments on its face showing it was served and acted upon; his evidence on leave and public holiday pay shifted under cross-examination, and he conceded he took leave including for 2013 and 2014 and was compensated for holiday work. The Court saw no motive for the Respondent to fabricate documents against a long-serving employee with a clean record. The claim was dismissed in its entirety with no order on costs. Judgment delivered at Mombasa on 21st June 2019 by James Rika, Judge.

Key legal issues

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01

Whether termination was unfair or the Claimant retired on medical ground at his own request

Holding

The Claimant requested retirement on medical ground, presented a medical report, and the Respondent accepted; there was no unfair termination

Reasoning

The Court found the Claimant not truthful. He denied writing the letter dated 13th November 2014 requesting retirement on medical ground, but the letter bore management comments showing it was served, received, and acted on after internal consultation. The Respondent had no motive to fabricate documents against an employee of over 18 years with a clean record and a cordial relationship. His evidence was unbelievable.

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02

Whether unpaid leave and public holiday pay were due

Holding

No; the Claimant took his annual leave including for 2013 and 2014, and was compensated for work on public holidays

Reasoning

In cross-examination the Claimant admitted he went on annual leave, including for 2013 and 2014, and conceded he was compensated for work performed on public holidays. His shifting positions on when he took leave undermined his credibility on this head of claim.

p. 2

Legal principles established

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  • Credibility is assessed on the consistency of a witness's testimony; shifting evidence destroys credibility
  • A court will not presume that an employer manufactured contemporaneous documents bearing management comments establishing a formal process

Court orders

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  1. 1.The Claim is dismissed
  2. 2.No order on the costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a statement of claim for unfair termination and employment benefits (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, "Vitalis Ndege Ouyo v K K Security Group of Companies [2019] KEELRC 1307 (KLR)", Case Analysis (2019). Cause No 744 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1307/eng@2019-06-21

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