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ELRCDismissedAppeal No 38 of 2020· [2023] KEELRC 3049 (KLR)

Ouru v Eveready Security Guards Co. Ltd (Appeal 38 of 2020) [2023] KEELRC 3049 (KLR)

Employment and Labour Relations Court
29 November 2023
3,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Employment and Labour Relations Court (Dr. Jacob Gakeri, Judge) dismissed a first appeal by a security guard against the judgment of Hon. A. M. Obura (Mrs) SPM in Nairobi CMEL Case No. 1254 of 2019, which had dismissed in totality his claim for unlawful termination of employment. The Claimant alleged he was verbally dismissed by the Respondent's General Manager on 6th June 2019 and sought notice pay, twelve months' compensation, leave, leave travelling allowance, overtime, rest days, public holiday pay, house allowance, service gratuity and a certificate of service. The court, applying the principle that a first appeal is a re-trial, found no merit in the grounds faulting the trial Magistrate's analysis of evidence. The Claimant's own letter of 6th June 2019, refusing to work with notice and demanding his salary, contradicted his testimony of verbal dismissal, and his evidence lacked coherence and credibility. Relying on Section 47(5) of the Employment Act, the court held the Claimant failed to prove unlawful or unfair termination, rendering Sections 44, 45, 49 and 50 inapplicable. Each monetary prayer failed for want of pleading or proof: special damages were neither specifically pleaded nor strictly proved; leave was paid in lieu; overtime, off-days and public holiday claims lacked particulars; gratuity was contractual and NSSF contributions were being made; and no underpayment or house allowance claim had been pleaded. However, the court held the Claimant entitled to a certificate of service under Section 51, ordering the Respondent to issue it within 30 days. The appeal was otherwise dismissed with each party bearing their own costs.

Key legal issues

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01

Burden of proof in unfair termination claims

Holding

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.

Reasoning

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).

p. 5
02

Applicability of Sections 44 and 45 of the Employment Act

Holding

Neither provision applied because the evidence was insufficient to establish unlawful termination.

Reasoning

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.

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Reliefs consequential to unfair termination

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed save for the prayer for certificate of service
  2. 2.The Respondent shall issue the Claimant a certificate of service within 30 days
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSections 44 and 45
  • Employment ActSections 49 and 50
  • Employment ActSection 35(5) and 35(6)
  • Employment ActSection 51
  • Regulation of Wages (General) Orders
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (8)

  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • James Ondima Kabesa V Trojan International Ltd
    (2017) eKLR
  • Ngunda V Ready Consultancy Ltd
    (2022) KECA 577
  • James Kyama V Muthaiga Golf Club
    (2022) eKLR
  • Selle & another V Associated Motor Boat Co. Ltd & others
    (1968) EA 123
  • Hahn V Singh
    (1985) KLR 716
  • Swalleh C. Kariuki V Haron Victor Nyongesa
    (2021) eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.