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ELRCDismissedCause (Memorandum of Claim filed 17th June 2013; number not stated in judgment)· [2019] KEELRC 2362 (KLR)

Philip Waweru Gitu v Straight Security Services Limited [2019] KEELRC 2362 (KLR)

Employment and Labour Relations Court
4 February 2019
MOMaureen Onyango
2,020 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 an employee's unfair dismissal and unpaid dues claim because he couldn't prove it—documents and evidence won the day for the employer.

What this practically means

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Executive summary

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The claimant filed a Memorandum of Claim on 17th June 2013 alleging wrongful and unlawful dismissal and non-payment of dues, seeking a declaration of wrongful dismissal and Kshs.1,133,634 comprising notice pay, house allowance, service allowance, unpaid leave, unpaid salary for 15 days, risk/hardship allowance, travelling allowance, off allowances and NSSF dues, plus costs and interest. The respondent denied the claims, contending the dismissal followed poor performance, lapses at work sites in Othaya, and a disciplinary process the claimant failed to attend. At hearing, the claimant testified on his own behalf while the respondent called RW1, Francis Munene, a director. The claimant produced a termination letter dated 1st August 2012 purporting to be on grounds of restructuring; the respondent produced a leave/investigation letter, a disciplinary hearing invitation and a summary dismissal letter dated 31st July 2012. The court framed two issues: whether the dismissal was unfair and whether the claimant was entitled to the reliefs sought. Applying sections 107-109 of the Evidence Act, the court found the claimant had not proved unfair dismissal on a balance of probabilities, disbelieving the termination letter he produced because its signatory was not the Director whom his pleadings blamed for the dismissal. The court further found none of the monetary heads proved: no notice pay upon summary dismissal, salary consolidated with house allowance, NSSF membership barring service pay, and an admitted leave balance. The entire claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the summary dismissal was unfair

Holding

The claimant failed to prove unfair termination on a balance of probabilities; the respondent's evidence was more probable

Reasoning

The claimant produced a termination letter allegedly on grounds of restructuring signed by a person other than the Director, yet his pleadings stated he was dismissed by the Director. RW1 testified all letters were signed by him as Managing Director. The respondent showed a show-cause letter, a disciplinary hearing invitation and a summary dismissal letter. The court found the respondent's version more probable.

p. 3
02

Whether the claimant was entitled to the monetary reliefs claimed

Holding

None of the heads of claim was proved

Reasoning

The court found no entitlement to notice pay (summary dismissal), house allowance (consolidated salary, no demand), service pay (NSSF membership), leave (35 days balance admitted by conduct), and no proof of unpaid salary, risk, travelling or off allowances.

p. 3

Legal principles established

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  • A party who alleges a fact bears the burden of proving it under sections 107-109 of the Evidence Act
  • Where parties give conflicting versions of evidence, the court falls back on the law of evidence and the burden of proof
  • An employer's defence that a dismissal followed a disciplinary process, supported by more probable evidence, discharges the claim of unfair termination

Court orders

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  1. 1.The entire claim fails and is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Actsections 41, 43(1)(2), 45, 47(5), 35(6), 90
  • Evidence Actsections 107 to 109

Cases cited (4)

  • GMV v Bank of Africa Kenya Limited
    Cause 1227 of 2011
  • Southern Highlands Tobacco v McQueen
    (1960) EA
  • Rioba Maugo v Riley Falcon Security Services Ltd
    [2016] eKLR
  • Gilbert Kasumalu Kithi v Nyali Beach Holiday Resort
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Philip Waweru Gitu v Straight Security Services Limited [2019] KEELRC 2362 (KLR)", Case Analysis (2019). Cause (Memorandum of Claim filed 17th June 2013; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2362/eng@2019-02-04

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