Onyango v Riley Falcon Security Services Ltd (Appeal E043 of 2023) [2023] KEELRC 3037 (KLR)
The bottom line
#Kenya's Employment Court dismissed a security guard's appeal, but won him the Certificate of Service his former employer had withheld after a fair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Unfair termination and fairness of disciplinary process
The disciplinary process was fair; the Appellant failed to meet the standard of proof
The Respondent issued a charge sheet, the Appellant gave a written response in English, was invited to an in-person hearing with a colleague of his choice, attended with a colleague guard and signed the minutes without complaining of arm-twisting or language difficulties. His witness statement did not name the person who allegedly arm-twisted him. The Court held the process was fair and the trial Magistrate made no error.
Underpayment claim and limitation
Trial Magistrate erred in not addressing the head, but the claim was caught by limitation
The claim was advanced for underpayments from 2010 to 2018 but the trial Magistrate did not address it, an error of law and fact. However, the cause was filed on 10 January 2022, more than 3 years after separation, so the claim was caught by section 90 of the Employment Act, 2007.
Overtime claim
Not proved; payslips showed overtime was compensated
The Appellant testified he worked 12 hours a day instead of the stipulated 8, but the Respondent denied unremunerated overtime, stating he was on call and any overtime worked was compensated. The payslips produced by the Appellant indicated overtime was paid, and without corroboration he did not lay an evidentiary foundation for the claim.
Gratuity
Not eligible under Regulation 17(2) of the 1998 Order given the dismissal
The Appellant relied on Regulation 17 of the Regulation of Wages (Protective Security) Services Order, 1998; the Respondent relied on his NSSF contributions and sections 35(5) and (6) of the Employment Act. Having found the dismissal fair, the Court held that by operation of Regulation 17(2) he was not eligible for gratuity.
Legal principles established
#- On a first appeal the court must re-evaluate the evidence and make its own findings, conscious that it did not see the witnesses
- Section 47(5) of the Employment Act places the obligation on the employee to show at first instance that unfair termination occurred
- A Certificate of Service is a statutory entitlement
Court orders
#- 1.The Respondent to issue a Certificate of Service to the Appellant within 30 days
- 2.The Appeal dismissed with no order on costs
- On appeal from
- Principal Magistrate's Court
- not stated
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's judgment in an employment cause (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Riley Falcon Security Services Ltd (Appeal E043 of 2023) [2023] KEELRC 3037 (KLR)", Case Analysis (2023). Memorandum of Appeal filed 2 August 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3037/eng@2023-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.