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ELRCPartially AllowedCause No. 10 of 2018· [2019] KEELRC 2016 (KLR)

Francis Nyangaresi Angwenyi v Brinks Security Services Ltd [2019] KEELRC 2016 (KLR)

Employment and Labour Relations Court of Kenya
14 February 2019
MMM. Mbaru
858 words in judgment
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The bottom line

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A Kenyan court ruled that when an employer keeps no employment records, its misconduct allegations fail and the worker's story wins.

What this practically means

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Executive summary

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The claimant, a guard employed by the respondent from 2017 (pleaded as 1st July 2017) at a monthly wage of Ksh.9,500, claimed he was dismissed on 6th November, 2017 after refusing a night transfer to another site, and sought gratuity of Ksh.47,550, notice pay of Ksh.9,500, compensation of Ksh.114,000 and costs. The defence alleged a history of reporting to work drunk, that on 5th November, 2017 the claimant slapped a female colleague, Alice Gathoni Macharia, and absconded, leading to suspension, investigation and summary dismissal. Three defence witnesses (Macharia, branch manager Moses Mauka and HR manager Raymond Nzioka) testified to this account. However, the respondent filed no work records, no warning letters, no suspension letter and no invitation to a disciplinary hearing. Applying sections 10(6) and (7) of the Employment Act, 2007, the court held it must believe the employee in the absence of work records, leaving the respondent's allegations without material challenge. The court found the dismissal contrary to sections 35, 41 and 43 of the Employment Act for want of notice, hearing and justifiable cause, and therefore unfair. The claimant was awarded notice pay of Ksh.9,500 and compensation equivalent to one month's gross wage of Ksh.9,550, with costs. The gratuity claim was declined for lack of any contractual, collective agreement or Wage Order basis. Judgment was delivered at Nakuru on 14th February, 2019 by M. Mbaru Judge.

Key legal issues

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01

Burden of proof where employer produces no employment or disciplinary records

Holding

In the absence of work records, suspension letters or invitation to a disciplinary hearing, the respondent's allegations of misconduct were unchallenged and the claimant's account prevailed

Reasoning

The respondent alleged drunkenness, violence and gross misconduct but filed no work records, no warning letters, no suspension letter and no invitation to a disciplinary hearing. Section 10(6) and (7) of the Employment Act obliges the court to believe the employee where the employer produces no records, so the defence evidence stood without material challenge.

p. 2
02

Procedural fairness in termination

Holding

The dismissal without notice, hearing or justified reasons breached sections 35, 41 and 43 of the Employment Act and was unfair

Reasoning

Sections 35, 41 and 43 require notice, a hearing and genuine reasons for termination. The respondent conducted no documented disciplinary process, so the termination was procedurally and substantively unfair, entitling the claimant to notice pay and compensation.

p. 2
03

Entitlement to gratuity

Holding

The gratuity claim was declined because no contractual, collective or statutory basis was established

Reasoning

Gratuity is not automatic; it arises from a private treaty, a collective agreement or a Wage Order published by the Minister. The claimant laid no such basis despite 10 years of service, so the claim for Ksh.47,550.00 failed.

p. 2

Legal principles established

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  • Under section 10(6) and (7) of the Employment Act, 2007, where the employer fails to file work records, the court must believe the employee's version
  • Dismissal without notice, a hearing and genuine reasons under sections 35, 41 and 43 of the Employment Act is unfair termination

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for payment of compensation at Ksh.9,550.00
  2. 2.Payment of notice pay at Ksh.9,500.00
  3. 3.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; sections 10(6) and (7), 35, 41 and 43 cited)

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, "Francis Nyangaresi Angwenyi v Brinks Security Services Ltd [2019] KEELRC 2016 (KLR)", Case Analysis (2019). Cause No. 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2016/eng@2019-02-14

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