Mbwana Said Mbavu v Kwale Water and Sewerage Company Limited [2020] KEELRC 518 (KLR)

The Claimant gave inconsistent dates (2002 in the demand letter, 2005 in pleadings, 2006 in oral evidence), and the Respondent said 2015. Neither party produced definitive documents, but the Claimant exhibited a letter of appointment dated 27th August 2015 for casual employment, and Respondent witnesses admitted no written contracts were initially issued and could not say when he started. Section 10(7) permits reliance on the employee's oral evidence where the employer fails to keep records, so the corrected oral date of 2006 was accepted.

Both Respondent witnesses confirmed the Claimant was never called to any disciplinary forum, was not asked to show cause, and was not heard on the allegations. The claimed Board resolution terminating the contract was not produced in court. This breached Sections 41 and 45 of the Employment Act, rendering the procedure a complete failure of fair procedure.

The revenue-collection allegation was unsupported: no customers were named, no receipts exhibited, no public notice of lost receipt books was issued, and the Managing Director oddly advised customers to seek refunds from the Claimant. The union meeting at Baraza Park was not shown to be illegal, occurred over the lunch break, and employees are constitutionally entitled to picket and demonstrate. The forgery allegation was neither pleaded nor evidenced nor stated to have been considered by the Board.

The Claimant failed to prove his pleaded salary of Kshs. 16,802; the October 2016 casual payroll showing Kshs. 542 daily supported the Respondent's figure of Kshs. 14,092 monthly. Given 10 years of clean service, contracts renewed without fail, and fellow union meeting participants still employed, 8 months' compensation was fair. Service pay was awarded for 8 years from 2007 (when Section 35 became law) to 2015 when N.S.S.F contributions apparently commenced. Leave, public holiday and house allowance claims failed for want of proof.