Norah G. Ondieki v Hatari Security Guards Limited [2020] KEELRC 1576 (KLR)
The bottom line
#A Kenyan court ruled that employers who show up to court with no evidence automatically lose unfair termination claims, even where the awarded damages are modest.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship
The claimant proved employment as a security guard, unrebutted and corroborated by the staff identity card
The claimant testified she was employed on 16.6.2012 as a security guard and produced a staff identity card, bank statement and medical report. The respondent filed a defence but tendered no evidence and made no submissions, so the claimant's evidence stood unrebutted and the identity card was not disowned.
Unfair termination under section 45 of the Employment Act
The termination was unfair because the employer failed to discharge the statutory burden of proving valid and fair reasons and fair procedure
Section 45(2) of the Employment Act places the burden on the employer to prove that termination was grounded on valid and fair reasons related to conduct, capacity and compatibility or operational requirements, and that fair procedure was followed. The respondent adduced no evidence at all, so the burden was not discharged.
Work-related injury claim
The claimant proved she was injured while on duty, but the claim for damages failed because the injury was not reported to DOSHS and incapacity was not assessed
The medical report from Mama Lucy Kibaki Hospital was produced unrebutted, proving injury on duty. However, damages failed because the report was prepared three months after the injury, there was no evidence of immediate treatment or reporting to the employer and the Director of Occupational Safety and Health Services, and incapacity was never assessed.
Legal principles established
#- Under section 45(2) of the Employment Act, termination is unfair unless the employer proves valid and fair reasons and a fair procedure; the burden of proof lies on the employer
- A Certificate of Service is a statutory right under section 51 of the Employment Act for an employee who serves over 4 weeks
Court orders
#- 1.Judgment for the claimant in the total sum of Kshs. 28,875.00 comprising notice pay Kshs. 7,500.00, compensation Kshs. 15,000.00, house allowance Kshs. 5,625.00 and uniform levy refund Kshs. 750.00
- 2.The award is subject to statutory deductions but in addition to costs and interest at court rates from the date of judgment
- 3.The respondent to issue the claimant with a Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment contracts and disputes under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Norah G. Ondieki v Hatari Security Guards Limited [2020] KEELRC 1576 (KLR)", Case Analysis (2020). Cause No. 1841 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1576/eng@2020-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.