Walter Barasa Ombikhwa v Lavington Security Limited [2021] KEELRC 11 (KLR)
The bottom line
#A Kenyan court ruled a security guard was unfairly terminated because his employer kept no work records and could not justify sending him away.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is constructive dismissal
- 2.Whether there is wrongful termination of employment
- 3.Whether the remedies sought should issue
Key legal issues
#Constructive dismissal
The constructive dismissal claim failed because there was no resignation by the claimant; the removal from work was effected by the employer.
Constructive dismissal requires the employee, facing intolerable working conditions caused by the employer, to initiate termination by resigning. Here the claimant was sent away by verbal communication from the respondent; there was no resignation, so a key element of constructive dismissal was missing. The claim therefore had to be assessed as ordinary (unfair/wrongful) termination by the employer rather than constructive dismissal.
Wrongful and unfair termination
The court found the respondent wrongfully and unfairly terminated the claimant's employment, entitling him to notice pay and compensation.
The respondent alleged desertion but issued no notice over the alleged absconding and filed no work records. Where reduced work forced placement directions, no notice under section 40 of the Employment Act was issued. Under sections 43(1) and 47(5) the burden of justifying termination rests on the employer, and under section 10(6) and (7) it must produce work records. Having produced none, the respondent failed to justify the termination.
Remedies and quantum
Compensation of 6 months' gross pay (Ksh.59,400), one month's notice pay (Ksh.9,900), 18 months' leave pay (Ksh.14,850) and house allowance of Ksh.54,460 were awarded; other heads were rejected or made subject to clearance.
The claimant served about 7 years, justifying 6 months' compensation under section 49. Leave records were absent, so only the statutory 18 months of untaken leave was payable under section 28. The alleged consolidation of wage and house allowance was not supported by any contract, and the security guard's wage was regulated by Wage Orders, revealing underpayment; the claimed house allowance was found reasonable. Public holiday and overtime claims were rejected as unparticularised and exaggerated.
Legal principles established
#- Constructive dismissal requires the employee to initiate termination of employment in response to intolerable conditions imposed by the employer; without a resignation the claim fails.
- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer; where the employer files no work records, its defence fails.
Court orders
#- 1.Judgment entered for the claimant against the respondent
- 2.Compensation of Ksh.59,400
- 3.Notice pay of Ksh.9,900
- 4.Leave pay of Ksh.14,850
- 5.House allowance of Ksh.54,460
- 6.The claimant to undertake clearance with the respondent upon which his deductions (uniform refunds and annual duty deductions) shall be processed
- 7.The claimant is awarded costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims under Article 162(2) of the Constitution and the Employment Act, 2007
Relief refused
#Public holidays pay of Ksh.47,190
The claim was not particularised
Overtime pay of Ksh.579,150
Wage regulation in the private security sector allows 10-hour work days; the claim was exaggerated
Damages of 12 months' gross salary (Ksh.118,800) for loss of income
Court instead awarded 6 months' compensation under section 49 of the Employment Act
Leave pay for the entire duration of employment (Ksh.29,700 claimed)
Only 18 months' untaken leave is payable under section 28 of the Employment Act
Costs
The claimant is awarded costs of the claim.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In this case, the claimant was sent away under verbal communication. Such action is by the respondent. There is no resignation. A key element of constructive dismissal is missing.
Under Sections 43(1) and 47(5) of the Act, the burden of proving unfair termination of employment rests on the employee while the burden of justifying the grounds of termination of employment rests on the employer.
Without any evidence to challenge the claims made by the claimant, the court finds the respondent wrongfully and unfairly terminated the claimant's employment contrary to section 35, 43 and 45 of the Act.
Accordingly, judgment is hereby entered for the claimant against the respondent in the following terms;
The claimant is awarded costs.
Issues in the judgment
#The claim as listed includes two heads for public holidays (item f 'Untaken public holidays KSH.47,190' duplicating item d), an apparent duplication in the relief claimed.
The house allowance figure claimed is stated inconsistently within the judgment (Ksh.53,460 in the claim as listed and Ksh.54,460 in the determination).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Walter Barasa Ombikhwa v Lavington Security Limited [2021] KEELRC 11 (KLR)", Case Analysis (2021). Cause No. 1292 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/11/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.