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ELRCDismissedCause No 558 of 2016· [2022] KEELRC 1172 (KLR)

Otieno v Collindale Security Limited (Cause 558 of 2016) [2022] KEELRC 1172 (KLR)

Employment and Labour Relations Court
26 April 2022
NMNzioki wa Makau
1,893 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Security Guard and later promoted to Crew Commander, sued for unfair and unlawful termination of his employment on 5th December 2015 on account of desertion of duties. He claimed he was involved in a motorbike accident on 20th November 2015, was treated at Mbagathi District Hospital and placed on one month's bed rest, and that he left a sick sheet with a Mr. Maina at the Respondent's control room. He sought a declaration that the termination was unfair, plus notice pay, December 2015 salary, accrued annual leave, overtime, public holidays pay, compensation, service pay, uniform deductions, a certificate of service, costs and interest. The Respondent admitted the employment but asserted the Claimant absented himself without informing it, denied receipt of any sick sheet, and maintained all terminal dues were paid and acknowledged in a clearance form. Both parties filed submissions relying on authorities on the burden of proof under Sections 43(1), 45(2) and 47(5) of the Employment Act. The Court found the Claimant failed to prove on a balance of probabilities that he handed the sick sheet to Mr. Maina, whose full name and position he did not even know, and that he could not properly account for key dates. The Court further found the Respondent demonstrated payment of all dues. The claim was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Whether termination on account of desertion was unfair and unlawful

Holding

The Claimant failed to prove he notified the Respondent of his sickness as alleged; the claim of unfair termination was not established

Reasoning

The Claimant alleged he handed a sick sheet to one Mr. Maina but did not know his full name or position and did not call him as a witness. He also failed to properly account for dates of the accident and hospital treatment. Without proof of notification, the Respondent's assertion of desertion stood, and the burden under Sections 43(1) and 47(5) of the Employment Act was not discharged.

p. 3
02

Entitlement to terminal dues and reliefs

Holding

The Respondent demonstrated that all the Claimant's dues were paid and he signed a clearance form; no relief was available

Reasoning

The Respondent produced a clearance form showing payment of terminal dues including leave days, overtime and uniform deductions, which the Claimant admitted receiving during oral examination. The Court therefore found no outstanding relief available to the Claimant and dismissed the claim with no orders as to costs.

p. 3

Legal principles established

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  • A claimant in an unfair termination claim must prove his case on a balance of probabilities, including proof of the procedural steps he alleges he took

Court orders

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  1. 1.The Claimant's claim is dismissed in its entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Evidence ActSections 107 and 108
  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Section 35(6)
  • Private Security Regulation Act, 2016Not specified (hours of work for a watchman)

Cases cited (6)

  • Simon Mbithi Mbane v Inter Security Services Limited
    [2018] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Abisalom Ajusa Magomere v Kenya Nut Company Limited
    [2014] eKLR
  • Ali Omar Mwanyuni v Kwale International Sugar Company Ltd
    [2020] eKLR
  • Bakari Abdalla Mwangazi v Kwale International Sugar Company Limited
    [2020] eKLR
  • Protus Wanjala Mutike v Anglo African Properties t/a Jambo Mutara Lodge Laikipia
    [2021] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims

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, "Otieno v Collindale Security Limited (Cause 558 of 2016) [2022] KEELRC 1172 (KLR)", Case Analysis (2022). Cause No 558 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1172/eng@2022-04-26

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