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ELRCPartially AllowedNot stated in the judgment text· [2023] KEELRC 2504 (KLR)

Maweu v Security Seven Limited (Cause 330 of 2018) [2023] KEELRC 2504 (KLR)

Employment and Labour Relations Court
18 October 2023
1,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Claimant, Benjamin Thenge Maweu, sued Security Seven Limited alleging unlawful termination of his employment as a Night Security Guard engaged on an oral contract from May 11, 2017 to November 25, 2017, seeking notice pay, 12 months' compensation, prorata leave, underpayment, uniform refund, salary arrears, a certificate of service and costs. The Respondent admitted the engagement at a monthly salary of Kshs 12,500 but denied terminating the Claimant, contending that he deserted duty on November 24, 2017 after a client complaint about working fewer hours than required; it Counterclaimed for Kshs 12,500 being one month's salary in lieu of notice. The Court framed three issues: unlawful termination, entitlement to remedies, and the Counterclaim. Relying on Section 47(5) of the Employment Act and the authorities in Peter Otabong and Bakari Abdalla Mwangazi, the Court found the Claimant had failed to discharge his burden because he gave inconsistent dates of termination - November 25, 2017 in the pleadings but November 25, 2015 in testimony - and accordingly dismissed the unfair termination claim and the heads of notice pay and compensation. The claims for prorata leave, uniform refund and 24 days' salary were admitted by the Respondent's HR Officer and awarded at Kshs 16,146 with interest; underpayment was not proved. The Counterclaim failed for want of evidence of desertion and absence of any effort to engage the Claimant. Judgment was entered for the Claimant for Kshs 16,146 with interest, a Certificate of Service was ordered, and each party was to bear their own costs. Delivered virtually at Nairobi on October 18, 2023 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the Claimant proved unlawful termination of employment

Holding

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.

Reasoning

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.

p. 3
02

Whether the Claimant is entitled to the remedies sought

Holding

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.

Reasoning

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.

p. 4
03

Whether the Respondent made out a proper Counterclaim

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The said amount to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Respondent directed to issue the Claimant with a Certificate of Service
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 47(5)

Cases cited (3)

  • Peter Otabong v County Government of Busia
    [2017] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Bakari Abdalla Mwangazi v Kwale International Sugar Company Limited
    [2020] eKLR
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

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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, "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.