Wepukhulu v Tofada Security Services Limited (Appeal E102 of 2023) [2024] KEELRC 1405 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Burden of proof in unfair termination claims
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
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.
Whether termination without a termination letter or hearing was unfair
Termination was unfair both procedurally and substantively; the employer produced no termination letter and did not follow Sections 41(2) and 44
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.
Remedies for the two months worked
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
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.
Legal principles established
#- 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
#- 1.Declaration that employment of the appellant was terminated unfairly
- 2.Compensation awarded at Kshs. 17,412
- 3.Notice pay Kshs. 17,412
- 4.Underpayments Kshs. 12,824.57
- 5.Off days Kshs. 6,385
- 6.Certificate of service to be issued upon clearance
- 7.Costs of the appeal awarded at Kshs. 20,000
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.