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ELRCPartially AllowedMombasa ELRC Appeal (per judgment text; appeal from Mombasa CMELRC No. E347 of 2022)· [2024] KEELRC 1405 (KLR)

Wepukhulu v Tofada Security Services Limited (Appeal E102 of 2023) [2024] KEELRC 1405 (KLR)

Employment and Labour Relations Court
14 March 2024
2,824 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that employers must prove they fairly terminated a job — no termination letter means the worker's word wins.

What this practically means

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Executive summary

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The appellant, a security guard, claimed before the magistrate's court (Mombasa CMELRC No. E347 of 2022) that the respondent terminated his employment on 23 June 2020 without notice, hearing or terminal dues, and sought notice pay, June salary, underpayment, off days, overtime, public holiday pay, unspent contract term, 12 months' compensation, certificate of service and costs. The respondent alleged gross misconduct (abscondment, leaving duty without a reliever, failure to report). By judgment of 16 August 2023 the claim was dismissed with each party bearing its own costs. On first appeal, the ELRC re-evaluated the record. The court held that under Section 47(5) of the Employment Act, read with Sections 43 and 44, the burden rests on the employer to justify termination, and that the technical rules of the Evidence Act are removed from employment claims under the Employment and Labour Relations Act. The record contained no letter terminating employment; the employer did not issue notice under Sections 41(2) and 44 before treating the alleged abscondment as gross misconduct. The trial court's reliance on Section 107 of the Evidence Act was a misapplication of the law and its findings could not stand. The appeal was allowed: the magistrate's judgment was set aside and substituted with a finding of unfair termination and awards of compensation (Kshs. 17,412), notice pay (Kshs. 17,412), underpayments (Kshs. 12,824.57), off days (Kshs. 6,385), a certificate of service upon clearance, and appeal costs assessed at Kshs. 20,000. Claims for public holiday pay and the full unspent contract term were refused.

Key legal issues

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01

Burden of proof in unfair termination claims

Holding

The burden lies on the employer under Section 47(5) of the Employment Act once the employee asserts unfair termination; the technical Evidence Act threshold does not apply

Reasoning

Section 20 of the Employment and Labour Relations Act, 2011 removes the technical application of the Evidence Act from employment claims. Under Section 47(5), the employee need only claim unfair termination, and the employer must disprove the assertions. The trial court erred by applying Section 107 of the Evidence Act and by faulting the appellant for not producing a letter of termination.

p. 4
02

Whether termination without a termination letter or hearing was unfair

Holding

Termination was unfair both procedurally and substantively; the employer produced no termination letter and did not follow Sections 41(2) and 44

Reasoning

The record had no letter terminating employment. The respondent alleged abscondment (gross misconduct under Section 44(4)(a)) but did not issue notice under Section 41(2) allowing the employee to defend himself, nor serve the Labour Officer under Section 18(5)(b). Without such steps the employee's account that he was sent away stands.

p. 4
03

Remedies for the two months worked

Holding

One month's compensation, notice pay, underpayment for April and May 2020, pay for 21 days in June, and 11 off/rest days awarded; public holiday and full contract claims refused

Reasoning

The appellant worked April to June 2020, not January as claimed. Compensation of one month was found appropriate for the short service. Underpayment computed at the Mombasa guard wage of Kshs. 15,141.95 plus 15% house allowance. The respondent failed to produce records of rest days under Sections 10(6), (7) and 27 of the Act, so 11 off days were compensated.

p. 5

Legal principles established

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  • Where employment is terminated without any letter of termination, the employee's word stands and the employer bears the burden under Section 47(5) of the Employment Act to justify the termination
  • Section 47(5) of the Employment Act places the burden on the employer to justify the reasons for termination, and the strict technical rules of the Evidence Act are removed from employment claims
  • Where an employer alleges an employee absconded, it must follow the procedure under Sections 41(2) and 44 of the Act, including notice to attend and defend himself

Court orders

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  1. 1.Declaration that employment of the appellant was terminated unfairly
  2. 2.Compensation awarded at Kshs. 17,412
  3. 3.Notice pay Kshs. 17,412
  4. 4.Underpayments Kshs. 12,824.57
  5. 5.Off days Kshs. 6,385
  6. 6.Certificate of service to be issued upon clearance
  7. 7.Costs of the appeal awarded at Kshs. 20,000

Authorities

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Legislation

  • Employment Act, 2007Sections 10(6) and (7), 18(5)(b), 20 (as misdescribed), 27, 35(1), 41, 41(2), 43, 44, 44(4)(a), 45, 45(2), 47, 47(5), 51
  • Employment and Labour Relations Act, 2011Section 20
  • Evidence ActSection 107
  • Regulations of Wages (Protective Security Services) Order60 hours per week plus rest day

Cases cited (9)

  • Kiptum Nyaoke v Kenya Post Office Savings Bank
    [2022] eKLR
  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Walwanda v Radar Security Limited
    (Cause 263 of 2018) [2022] KEELRC 1217 (KLR)
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Nanyuki Water and Sewerage Company Ltd v Ntiritu
    (2018) eKLR
  • Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Jalang'o v Amicabre Travel Safaris Limited
    [2014] eKLR
On appeal from
Principal Magistrate's Court (ELRC), Mombasa
Mombasa CMELRC No. E347 of 2022
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court from the subordinate court (Employment and Labour Relations Act, 2011); specific section not stated in judgment

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, "Wepukhulu v Tofada Security Services Limited (Appeal E102 of 2023) [2024] KEELRC 1405 (KLR)", Case Analysis (2024). Mombasa ELRC Appeal (per judgment text; appeal from Mombasa CMELRC No. E347 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1405/eng@2024-03-14

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