Oliyo v Pride Security Services Ltd (Appeal E032 of 2023) [2024] KEELRC 487 (KLR)
The bottom line
#A Kenyan security guard who quit after three months of unpaid wages won Kshs 129,089 because his employer kept no payment records.
What this practically means
#Executive summary
#Key legal issues
#Whether unfair termination/constructive dismissal was proved
The Trial Magistrate erred in finding it was not proved; non-payment of wages for three months constituted repudiation justifying resignation as constructive dismissal
The Appellant alleged non-payment of wages for February to April 2021. The Respondent produced no pay records to counter this testimony. Payment of wages is an essential of an employment contract; failure to pay indicated repudiation of a fundamental term, entitling the Appellant to resign and claim constructive dismissal. However, no compensation was awarded given the other reliefs allowed.
Standard of proof applicable to unfair termination claims
The Trial Magistrate erred in applying sections 107 and 108 of the Evidence Act instead of the Employment Act provisions
The Senior Principal Magistrate referred to sections 107 and 108 of the Evidence Act on burden of proof. The Court held the applicable threshold for unfair termination claims is that set out in sections 35(1), 41, 43, 45 and 47(5) of the Employment Act, 2007.
Underpayments claim
Allowed; the Appellant was underpaid by Kshs 94,374/- over 14 months relative to the prescribed minimum wage for a night security guard
The Appellant testified he earned Kshs 8,400/- monthly with no pay slips or written contract. The Respondent, with a statutory duty to keep records, produced none. The Court assessed underpayment against the prescribed minimum wage of Kshs 15,141/- for a night security guard under the Regulation of Wages (General)(Amendment) Order, 2017, computing Kshs 94,374/- over 14 months of service.
Overtime/holidays worked claim
Allowed; the Trial Magistrate erred by not considering section 10(3) of the Employment Act on the employer's duty to keep overtime records
The Appellant worked 6.00 pm to 6.00 am seven days a week including off days and claimed Kshs 13,715/-. Under section 10(3) of the Employment Act, the employer should have kept and placed before the Court records of the Appellant's entitlement to overtime. The Trial Magistrate's failure to consider the effect of this provision was an error of law.
Unpaid leave claim
Dismissed; no evidential foundation was laid
Although the employer had a duty under section 10(3) of the Employment Act to keep records of annual leave entitlement, the Appellant did not mention leave in his witness statement or oral testimony, and therefore failed to lay an evidential foundation. The Trial Magistrate's dismissal of this head was not faulted.
Unpaid salaries claim
Allowed; Kshs 21,000/- for February, March and April 2021
The Appellant produced a bank statement extract up to 17 February 2021. The Respondent did not place before the Court any records demonstrating payment of wages up to the date of resignation as demanded by section 20 of the Employment Act, 2007.
Legal principles established
#- A first appellate court must re-evaluate the evidence, assess it and reach its own conclusions while making due allowance for not having seen or heard the witnesses
- The burden of proof in unfair termination cases is that in sections 35(1), 41, 43, 45 and 47(5) of the Employment Act, 2007, not sections 107 and 108 of the Evidence Act
- Non-payment of wages indicates an intention to repudiate a fundamental term of the contract, entitling the employee to resign and assert constructive dismissal
- Where an employer fails to keep and produce pay records as required by section 10(3) of the Employment Act, the court may look to the prescribed minimum wage and the employee's testimony
Court orders
#- 1.Vacating and setting aside the Trial Magistrate's findings rejecting the heads of claim for underpayments, accrued leave, and overtime pay
- 2.Judgment entered for the Appellant: underpayments Kshs 94,374/-, overtime Kshs 13,715/-, unpaid salaries Kshs 21,000/-, total Kshs 129,089/-
- 3.Costs of the Appeal on half scale and costs before the Subordinate Court awarded to the Appellant
- On appeal from
- Senior Principal Magistrates Court
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the Senior Principal Magistrates Court (Memorandum of Appeal lodged with the Court; statutory appeal from subordinate court in employment matter)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oliyo v Pride Security Services Ltd (Appeal E032 of 2023) [2024] KEELRC 487 (KLR)", Case Analysis (2024). Not stated in the judgment (Cause on appeal from Senior Principal Magistrates Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/487/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.