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ELRCDismissedCause No 842 of 2016· [2023] KEELRC 2515 (KLR)

Masakha v Eveready Security Guards Co Limited (Cause 842 of 2016) [2023] KEELRC 2515 (KLR)

Employment and Labour Relations Court
18 October 2023
LNLinnet Ndolo
1,153 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee's unfair termination claim collapsed because he gave two different dates for when he was fired, so accuracy in your own evidence is decisive.

What this practically means

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Executive summary

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The Claimant sued for unlawful termination of employment, claiming three months' notice pay, unpaid leave, severance pay, house allowance and general damages, asserting he was employed from September 1, 2009 until March 26, 2016 on a monthly salary of Kshs. 12,200. The Respondent denied the claim, asserting the Claimant was engaged as a Security Guard from September 2, 2010 and was summarily dismissed for gross misconduct - absenting himself from duty without leave, neglecting duties and reporting to work intoxicated - supported by warning letters and admission letters signed by the Claimant. It further claimed he was paid all dues and took leave or compensation in lieu between 2012 and 2015. The Court framed two issues: whether the termination was lawful and fair, and whether the Claimant was entitled to the remedies sought. Applying Section 47(5) of the Employment Act and the Court's precedents in Peter Otabong and Bakari Abdalla Mwangazi, the Court found the Claimant had given irreconcilable accounts of his termination date - March 26, 2016 in the Memorandum of Claim, March 16, 2014 in his witness statement and testimony - and, absent credible explanation, failed to discharge his evidential burden. The Respondent was discharged from its evidential burden. The claims for damages for wrongful dismissal and notice pay were dismissed; the house allowance, leave pay and severance pay claims were disallowed for want of evidence. The entire claim was dismissed with each party bearing their own costs. Delivered virtually at Nairobi on October 18, 2023 by Linnet Ndolo, Judge.

Key legal issues

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01

Lawfulness and fairness of the termination

Holding

The claim failed because the Claimant did not discharge his burden under Section 47(5) of the Employment Act, having given contradictory dates of termination

Reasoning

The Claimant pleaded March 26, 2016 as the termination date in his Memorandum of Claim, but stated March 16, 2014 in his witness statement and in testimony. Relying on its earlier decision in Bakari Abdalla Mwangazi, the Court held that an employee who prevaricates on the date of termination cannot discharge the evidential burden. In the absence of credible explanation for the discrepancy, the Claimant failed to prove his case and the Respondent was discharged from its evidential burden.

p. 3
02

Entitlement to remedies (notice, leave, severance, house allowance)

Holding

All remedies claimed were refused; notice and damages claims failed with the termination claim, and leave, severance and house allowance claims lacked evidentiary support

Reasoning

Having found no wrongful dismissal, notice pay and general damages fell away. The Respondent had adduced evidence that the Claimant was granted leave in 2012–2015 and sometimes opted for pay in lieu. The claims for house allowance, leave pay and severance pay were unsupported by any evidence and were disallowed.

p. 4

Legal principles established

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  • An employee alleging unfair termination bears the initial burden of establishing a prima facie case, upon which the employer's burden to justify the termination is triggered
  • An employee who prevaricates on the date of termination of employment cannot be said to have discharged their evidential burden under Section 47(5) of the Employment Act

Court orders

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  1. 1.The Claimant's entire claim fails and is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment ActSection 47(5)

Cases cited (2)

  • Peter Otabong v County Government of Busia
    [2017] eKLR
  • Bakari Abdalla Mwangazi v Kwale International Sugar Company Limited
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance unfair termination claim under Section 47(5) of the Employment Act)

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, "Masakha v Eveready Security Guards Co Limited (Cause 842 of 2016) [2023] KEELRC 2515 (KLR)", Case Analysis (2023). Cause No 842 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2515/eng@2023-10-18

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