Ouru v Eveready Security Guards Co. Ltd (Appeal 38 of 2020) [2023] KEELRC 3049 (KLR)
The bottom line
#Kenya's Employment Court confirmed employees must prove unfair dismissal themselves, and vague, unpleaded claims for extra pay will simply fail.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in unfair termination claims
The Claimant failed to prove on a balance of probabilities that his termination was unlawful; his 6th June 2019 letter contradicting his evidence of verbal dismissal undermined his credibility.
The court re-evaluated the evidence as on a first appeal. The Claimant's letter of 6th June 2019, in which he refused to work with notice and demanded his salary, contradicted his testimony that he had been verbally dismissed. His credibility, already impugned by the trial court on the warning letters, could not sustain the claim under Section 47(5).
Applicability of Sections 44 and 45 of the Employment Act
Neither provision applied because the evidence was insufficient to establish unlawful termination.
Having found the Claimant had not discharged the burden under Section 47(5), the court held that Sections 44 and 45 could not be invoked. Counsel had not explained the context in which the provisions would apply, and the trial court's finding of insufficient evidence foreclosed their application.
Reliefs consequential to unfair termination
Sections 49 and 50 reliefs are unavailable absent a finding of unfair termination; special damages and monetary claims failed for want of pleading and proof.
The court examined each prayer individually. Leave had been paid in lieu; overtime, public holidays and off-days lacked particulars; gratuity was contractual and NSSF contributions were being made; house allowance was never pleaded. Only the certificate of service, entitlement to which arises under Section 51, was granted.
Legal principles established
#- A first appeal is a re-trial; the appellate court must re-evaluate the evidence while bearing in mind that it did not see or hear the witnesses.
- Under Section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination or wrongful dismissal, while the employer bears the burden of justifying the grounds for termination.
- Special damages must be specifically pleaded and strictly proved.
- Sections 49 and 50 of the Employment Act are triggered only by a finding of unfair termination or summary dismissal.
- Service gratuity is contractual, unlike statutory service pay under Section 35(5) of the Employment Act.
Court orders
#- 1.The appeal is dismissed save for the prayer for certificate of service
- 2.The Respondent shall issue the Claimant a certificate of service within 30 days
- 3.Each party to bear their own costs
- On appeal from
- Chief Magistrate's Court, Nairobi
- CMEL Case No. 1254 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's employment decision (Article 162(2) and Section 29 of the Employment and Labour Relations Court Act implied from the record; not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omuyonga v Fast Security Services Limited (Employment and Labour Relations Appeal E137 of 2023) [2025] KEELRC 1513 (KLR)[2025] KEELRC 1513 (KLR)23 May 2025
Cite this brief
#Cite this brief
Caselaw, "Ouru v Eveready Security Guards Co. Ltd (Appeal 38 of 2020) [2023] KEELRC 3049 (KLR)", Case Analysis (2023). Appeal No 38 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3049/eng@2023-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.