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Case Brief · caselaw.co.ke
ELRCDismissedCause No 380 of 2017· [2019] KEELRC 2603 (KLR)

Kenya National Private Security Workers Union v S. I Security Limited [2019] KEELRC 2603 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret
14 November 2019
618 words in judgment
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The bottom line

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A Kenyan employment claim failed because the union produced no payslips or evidence, and could not rely on the employer simply skipping the hearing.

What this practically means

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Executive summary

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The Kenya National Private Security Workers Union, on behalf of a grievant formerly employed by S.I Security Limited as a security guardess from 10th October 2014 until her resignation (dated 15th January 2016 per the claim, 23rd February 2016 per the respondent), claimed tabulation and payment of final dues including overtime, public holiday pay and untaken leave, alleging her Kshs. 6,000/= monthly salary was below the gazetted minimum wage. After an unresolved conciliation through the Ministry of Labour, the dispute was referred to the Court. The respondent, though served, did not attend the hearing, but in its response alleged the resignation letter was a forgery for which the union's secretary general faced criminal charges in Eldoret Criminal Case No 308 of 2018, and that the grievant had exhausted all her paid and unpaid leave, attaching leave forms. The claimant filed no reply to these allegations. The court held that although not strictly bound by the rules of evidence, it could not ignore the respondent's serious un-rebutted allegations; the claimant could not simply rely on the respondent's default. Further, the grievant produced no payslips or proof of payment to enable comparison with the minimum wage. Applying the principle that the onus of proof rests on the party seeking judgment, the court found the claim without merit and dismissed it with no order as to costs on 14th November 2019.

Key legal issues

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01

Effect of a respondent's failure to attend the hearing where un-rebutted allegations appear in the pleadings

Holding

The court declined to enter judgment on default because the respondent had raised serious allegations (forgery of the resignation letter, exhaustion of leave) that the claimant never refuted.

Reasoning

Although the respondent was served and did not attend, it had pleaded that the resignation letter was a forgery and that the grievant had exhausted all leave, attaching leave forms. The court held it is not strictly bound by the rules of evidence and could not ignore these allegations; the claimant union and grievant ought to have responded to them rather than rely on the respondent's absence. Proof remained the claimant's burden.

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02

Proof of the underpayment claim

Holding

The underpayment claim failed for want of evidence; no payslips or proof of payment were attached to allow comparison with the gazette minimum wage.

Reasoning

The grievant alleged her Kshs. 6,000/= monthly salary excluded overtime and public holidays and was below the gazette minimum wage. However, apart from the bare allegation, no payslip or other evidence of payment was produced, so the court could not quantify any underpayment. Since the onus of proof rests on the party seeking judgment, the claimant failed to discharge that burden.

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Legal principles established

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  • A party who does not attend court to defend a claim but who files pleadings raising serious allegations is still entitled to have those allegations rebutted; the claimant cannot simply ride on the respondent's default.
  • The burden of proving a claim rests on the party who expects the court to enter judgment in their favour.

Court orders

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  1. 1.The claim is dismissed for lack of merit
  2. 2.No order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the referred unresolved dispute (certificate of unresolved dispute following conciliation by the Ministry of Labour)

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, "Kenya National Private Security Workers Union v S. I Security Limited [2019] KEELRC 2603 (KLR)", Case Analysis (2019). Cause No 380 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2603/eng@2019-11-14

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