Maweu v Security Seven Limited (Cause 330 of 2018) [2023] KEELRC 2504 (KLR)
The bottom line
#A Kenyan security guard lost his unfair termination claim because he gave conflicting dates in court, winning only admitted dues of Kshs 16,146.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant proved unlawful termination of employment
The Claimant failed to discharge his burden; he gave conflicting dates of termination (November 25, 2017 in the pleadings, November 25, 2015 in testimony), so no case of unfair termination was established.
Section 47(5) of the Employment Act places the initial burden on the employee to prove that unfair termination or wrongful dismissal occurred, following Peter Otabong and Pius Machafu Isindu. Relying on this Court's earlier decision in Bakari Abdalla Mwangazi, conflicting dates of termination defeat that burden. The Claimant pleaded termination on November 25, 2017 but testified it was November 25, 2015, so he failed to prove unlawful termination.
Whether the Claimant is entitled to the remedies sought
Compensation and notice pay disallowed; prorata leave, uniform refund and 24 days' salary allowed as admitted by the Respondent's HR Officer; underpayment not proved and disallowed.
Having failed to prove unfair termination, the Claimant could not obtain notice pay or 12 months' compensation. However, the Respondent's Human Resource Officer admitted in testimony the claims for prorata leave pay, uniform refund and salary for 24 days, making them due and payable. The underpayment claim was unsupported by evidence and failed.
Whether the Respondent made out a proper Counterclaim
The Counterclaim for one month's salary in lieu of notice failed; desertion was not proved and the Respondent made no effort to contact the Claimant or warn him of termination on account of desertion.
The Counterclaim rested on the allegation that the Claimant deserted duty without notice. The Respondent adduced no evidence to support the desertion claim, and made no effort to reach the Claimant to resume duty or to put him on notice that termination for desertion was under consideration. The Counterclaim was accordingly not proved and dismissed.
Legal principles established
#- An employee who dithers on the date of termination of employment has not discharged the evidential burden under Section 47(5) of the Employment Act
- The sequential burden of proof in unfair termination claims: the employee proves that unfair termination occurred, the employer justifies the grounds
Court orders
#- 1.Judgment entered in favour of the Claimant for Kshs 16,146, comprising prorata leave for 5 months (Kshs 3,646), uniform refund (Kshs 2,500) and salary for 24 days (Kshs 10,000)
- 2.The said amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Respondent directed to issue the Claimant with a Certificate of Service
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act (Article 162(2) Constitution implied; not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maweu v Security Seven Limited (Cause 330 of 2018) [2023] KEELRC 2504 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2504/eng@2023-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.