Paul Maina Gichohi v Hatari Security Guards [2020] KEELRC 1442 (KLR)
The bottom line
#A Kenyan court dismissed a manager's claims for various dues after resignation and ordered him to pay his former employer Ksh.598,200 over ghost-worker fraud.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to terminal dues after resignation
All the claims for disturbance allowance, uniform refund, public holiday pay, sniff dogs refund, wage arrears, severance pay, leave and off days failed for lack of particulars and proof; only the certificate of service was due
The court found the claims were general and unsupported. Leave taken exceeded statutory entitlement under section 28(2). Severance pay applies only to redundancy. The claimant resigned voluntarily and sought no specific remedy for the alleged frustration. The only entitlement flowing from the resignation was a certificate of service under section 51 of the Employment Act.
Service pay raised at submissions stage
Service pay under section 35(5) could not be awarded as the claimant pleaded severance pay, not service pay
The claimant pleaded severance pay but urged service pay in submissions. The court held that a party cannot amend pleadings through submissions, as this would ambush the opposing party and deny it an opportunity to reply.
Counter-claim for ghost workers fraud
The counter-claim for Ksh.598,200 was allowed as uncontroverted and supported by audit evidence
There was no defence or reply to the counter-claim. The respondent's witnesses testified that a staff audit revealed ghost workers whose wages the claimant processed, causing a loss of Ksh.598,200. The matter had been reported to police. The court found the respondent had a genuine and reasonable cause and entered judgment for the counter-claim.
Legal principles established
#- Disturbance allowance on transfer is only payable where there is a contractual or agreed entitlement
- An employee must particularise wrongful conduct under section 47(5) of the Employment Act for general claims to succeed
- A party cannot introduce a new claim in submissions that was not pleaded
- Severance pay is only due upon redundancy under section 40 of the Employment Act, not on resignation
- An employer who proves loss from employee fraud is entitled to judgment on an uncontroverted counter-claim
Court orders
#- 1.The claimant's claim is dismissed
- 2.Judgment entered for the respondent on the counter-claim for Ksh.598,200 to be paid with costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Maina Gichohi v Hatari Security Guards [2020] KEELRC 1442 (KLR)", Case Analysis (2020). Cause No. 65 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1442/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.