Stephen Mukite Wasike v Pinkertons Kenya Limited [2022] KEELRC 923 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the alleged armed attack at the workplace on 6th July 2016 was proved
Not proved on a balance of probabilities; the Claimant's evidence was contradictory, the attack was never reported to the employer or police, and the medical documents lacked credibility
The Claimant's oral evidence conflicted with his written statement on who assisted him and how the attackers left. The Jamii Hospital documents had no doctor's name, signature or clear stamp, disagreed with the Mbagathi documents, and the letter recommending termination lacked professional input. The X-ray report was blank. The attack was never reported to the employer or police, so the Respondent's evidence that it was unaware remained uncontroverted.
Whether the Claimant was entitled to a declaration of early retirement
No; early retirement is consensual and could not be demanded by the employee
The Court held that voluntary early retirement is typically a consensual, bilateral discharge of an unexecuted contract, in the nature of an offer that binds only on acceptance (citing Rika J. in KPAWU v Bamburi Cement). The Respondent was not opposed in principle but required clearance, which the Claimant never completed. A declaration would impose an obligation on the Respondent contrary to the consensual nature of the arrangement.
Entitlement to the monetary reliefs (salary, house allowance, leave, general damages)
All declined for failure to plead and prove specific sums and underlying entitlements
The Claimant disclosed neither his salary nor other entitlements, claimed unspecified sums, and led no documentary evidence, as did the Respondent. The Court applied the burden-of-proof rule in Section 107 of the Evidence Act and the rule that special damages must be pleaded and proved. Absence from work in August 2016 was unauthorised, and the general damages claim was amorphous.
Legal principles established
#- He who alleges must prove - a party desiring judgment on asserted facts must prove those facts (Section 107, Evidence Act)
- Voluntary early retirement is a consensual, bilateral discharge of an unexecuted contract and can neither be demanded by an employee nor imposed by an employer
- Special damages must not only be pleaded but must also be proved
Court orders
#- 1.The Respondent is directed to compute and pay the Claimant's terminal dues for the one year and seven months worked within 60 days from the date of the judgment
- 2.The sum due is subject to statutory deductions
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Original 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, "Stephen Mukite Wasike v Pinkertons Kenya Limited [2022] KEELRC 923 (KLR)", Case Analysis (2022). Cause No 584 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/923/eng@2022-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.