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ELRCPartially AllowedNot stated in the judgment (Claimant's Amended Memorandum of Claim dated 19th September 2020; original claim filed 10th November 2016)· [2022] KEELRC 1149 (KLR)

Chemiati v Gillys Security & Investigation Services Ltd (Cause 2382 of 2016) [2022] KEELRC 1149 (KLR)

Employment and Labour Relations Court
30 June 2022
2,505 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed a security guard's employment and awarded him Kshs 62,685, but rejected his unfair termination claim because he had resigned in writing.

What this practically means

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Executive summary

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The Claimant, engaged as a night security guard from November 2011, claimed he was summarily terminated on 29th February 2016 without reason and sought damages including underpayments, house allowance, leave pay, public holiday pay, overtime, unremitted NSSF deductions, notice pay and compensation for unlawful termination. The Respondent denied employing him, alternatively alleging he absconded. The Court framed three issues: employment, unfair termination versus resignation, and entitlement to reliefs. On the first issue, the Court found the Respondent's denial contradicted by its own witness statement and payslips, and applying Section 10(7) of the Employment Act, held the Claimant was an employee. On the second issue, the Court found the Claimant's account contradictory - he wrote a resignation letter on 1st March 2016, one day after the alleged termination, and his explanation of a two-week pursuit of dues was inconsistent. Relying on authority that resignation is a unilateral employee act and Section 47(5) placing the burden of proving unfair termination on the employee, the Court held the Claimant voluntarily resigned and dismissed the unfair termination claim. On quantum, the Court awarded underpayments and house allowance only for the two proved months, leave pay for want of the Respondent's records, and Kshs 800 in NSSF deductions, declining public holiday pay, overtime, notice pay and compensation for want of proof. Total dues of Kshs 62,685/10 were awarded with interest at court rates, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the Claimant was an employee of the Respondent

Holding

The Claimant was an employee of the Respondent despite the Respondent's denial, as its own witness admitted he worked as a security guard and payslips were produced; the employer bore the burden of proof under Section 10(7) for failure to produce a written contract.

Reasoning

The Court noted the contradiction between the Respondent's denial of employment in its Response and its witness statement admitting the Claimant worked as a security guard at Nyayo-Estate. No written contract was produced, triggering Section 10(7) of the Employment Act which places the burden of proving or disproving terms of employment on the employer. The Court relied on the Mukasia case and the payslips produced to find an employment relationship existed.

p. 3
02

Whether the Claimant was unfairly terminated or voluntarily resigned

Holding

The Claimant voluntarily resigned; the claim of unfair termination was contradictory and unproved and was dismissed.

Reasoning

The Court found the Claimant's account contradictory: he wrote a resignation letter on 1st March 2016, only one day after allegedly being told his employment was terminated, yet claimed he wrote it after pursuing dues for two weeks. His resignation letter was in writing. Citing authority that resignation is a unilateral employee act, and applying Section 47(5) placing the burden of proving unfair termination on the employee, the Court held the Claimant failed to prove unfair termination and in fact resigned.

p. 4
03

Whether the Claimant was entitled to the terminal dues prayed

Holding

Only dues supported by available records were awarded: underpayments and house allowance for the two proved months, leave pay for want of the Respondent's records, and NSSF deductions; the rest were declined for want of proof.

Reasoning

The Court interrogated each head of claim despite finding no unfair termination. Underpayments and house allowance could only be awarded for the two months evidenced by payslips. Leave pay was awarded because the Respondent failed to produce records showing leave was taken or paid in lieu. Public holiday pay, overtime, notice pay and compensation for unlawful termination were declined for lack of documentation or because the Claimant resigned.

p. 5

Legal principles established

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  • Where an employer fails to produce a written contract of employment, the burden of proving or disproving an alleged term of employment rests on the employer (Section 10(7), Employment Act).
  • Resignation is a unilateral act of the employee whose efficacy does not depend on any action of the employer.
  • The burden of proving unfair termination rests on the employee, while the burden of justifying grounds for termination rests on the employer (Section 47(5), Employment Act).

Court orders

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  1. 1.Award of Kshs 8,464.90 for underpayment of wages based on the two proved payslips
  2. 2.Award of Kshs 3,261.40 for house allowance for the two proved months
  3. 3.Award of Kshs 50,158.59 in leave pay as the Respondent failed to produce records confirming leave taken or payment in lieu
  4. 4.Award of Kshs 800 in unremitted NSSF deductions (2012 January and 2013 July)
  5. 5.Total dues to the Claimant assessed at Kshs 62,685/10
  6. 6.Interest at court rates from the date of judgment until full payment
  7. 7.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 2 (definition of employee and contract of service)
  • Employment ActSection 10(7)
  • Employment ActSection 45(1) and (2)
  • Employment Act 2007Section 47(5)
  • Minimum Wage OrderNot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Omusamia vs Upperhill Springs Restaurant
    Cause 852 of 2017 [2021] KEELRC 3 (KLR)
  • Edward Isedia Mukasia vs Eldo Supermarket Ltd
    [2015] eKLR
  • Edwin Beiti Kipchumba vs National Bank of Kenya Ltd
    (2018) eKLR
  • Herbert Wafula Waswa vs Kenya Wildlife Services Civil Appeal
  • Mulano Electronics Limited vs Dickson Nyasi Muhajo
    (2021) eKLR
Jurisdiction invoked
First-instance employment dispute under the Employment Act, 2007

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, "Chemiati v Gillys Security & Investigation Services Ltd (Cause 2382 of 2016) [2022] KEELRC 1149 (KLR)", Case Analysis (2022). Not stated in the judgment (Claimant's Amended Memorandum of Claim dated 19th September 2020; original claim filed 10th November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1149/eng@2022-06-30

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