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ELRCDismissedNot stated in the judgment· [2021] KEELRC 39 (KLR)

Evans Omondi Juma v Riley Falcon Security Services Ltd [2021] KEELRC 39 (KLR)

Employment and Labour Relations Court
8 December 2021
701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a security guard's unfair dismissal claim because he failed to provide evidence proving his case.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard from around 1 February 2012, sued alleging unfair termination and claiming leave pay of Kshs 70,000/- for five years and terminal benefits. The dispute arose from a show-cause notice dated 16 March 2017 alleging he was found drunk in the workplace on the night of 15 March 2017. The Claimant admitted taking alcohol and sought forgiveness. He was invited to a disciplinary hearing held on 22 March 2017 with the right to be accompanied, admitted the drinking, and the panel recommended a severe warning and refresher training, which the Respondent issued on the same day. The Respondent asserted that thereafter the Claimant stopped reporting to work and could not be reached. The Court framed two issues: unfair termination and appropriate relief. On procedural fairness, it found the Claimant was afforded the opportunity to be heard contemplated by section 41 of the Employment Act, 2007. On substantive fairness, applying section 47(5), the Court held the Claimant bore the initial burden of demonstrating unfair termination; he did not name the person who allegedly dismissed him, challenged only the process rather than the reasons in his pleadings and testimony, and never addressed the drunkenness allegation orally. He therefore failed to discharge the burden under section 45(7) and was not entitled to compensation or damages. The claims for leave pay and terminal benefits failed for want of foundational evidence. The Cause was dismissed with costs by Radido Stephen, Judge, on 8 December 2021.

Key legal issues

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01

Procedural fairness of the termination

Holding

The Claimant was afforded procedural fairness under section 41 of the Employment Act, 2007

Reasoning

The Respondent issued a show-cause notice, invited the Claimant to a disciplinary hearing with the right to be accompanied, heard him (he admitted taking alcohol), and the panel recommended a severe warning and refresher training, which was issued. The Court was satisfied the opportunity to be heard contemplated by section 41 was afforded.

p. 1
02

Substantive fairness and burden of proof

Holding

The Claimant failed to discharge his burden of showing an unfair termination and was not entitled to compensation or damages

Reasoning

Under section 47(5) the claimant bears the initial burden of demonstrating unfair termination. The Claimant alleged he was dismissed after the warning but did not name who dismissed him or told him not to report to work; in pleadings and testimony he only challenged process, not the reasons, and never adverted to the drunkenness allegation. He therefore failed the section 45(7) burden.

p. 2
03

Breach of contract claim for leave pay

Holding

Relief under this head declined for lack of foundational evidence

Reasoning

The Claimant pleaded entitlement to 5 years' earned leave amounting to Kshs 70,000/- but no foundational evidence of this alleged breach of contract was set out in the witness statement or oral testimony, so the Court declined to award any relief under this head.

p. 2
04

Terminal benefits

Holding

Relief declined for lack of evidence

Reasoning

The Claimant led no evidence as to the terminal dues or benefits he was eligible for either under contract or statute, so the Court declined relief under this head.

p. 2

Legal principles established

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  • A claimant alleging unfair termination bears the initial burden of demonstrating it under section 47(5) of the Employment Act, 2007; only then does the employer bear the burden under sections 43 and 45 of proving valid and fair reasons.

Court orders

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  1. 1.The Cause is dismissed with costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 45(7)
  • Employment Act, 2007section 43
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance Cause; specific enabling provision not stated in the judgment)

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, "Evans Omondi Juma v Riley Falcon Security Services Ltd [2021] KEELRC 39 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/39/eng@2021-12-08

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