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ELRCPartially AllowedMemorandum of Claim dated 14th August 2017 (number not stated)· [2024] KEELRC 1715 (KLR)

Muthomi v Brinks Security Services Limited (Employment and Labour Relations Cause 1590 of 2017) [2024] KEELRC 1715 (KLR)

Employment and Labour Relations Court
28 June 2024
OKOcharo Kebira
3,932 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan security guard won only a Certificate of Service because nearly every other claim failed for late filing, missing evidence, or lack of specific proof.

What this practically means

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Executive summary

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The Claimant, a former security guard employed by the Respondent from 2009 until his separation in 2016, sued for various terminal and employment dues including a Certificate of Service, refund of uniform charges, overtime, public holiday pay, leave pay, underpayment, house allowance, service pay, Sacco refunds and a Kshs. 100,000/- penalty for non-issuance of a Certificate of Service. The Respondent denied the claims, asserting the salary was all-inclusive, leave was taken, and that the Claimant deserted duty rather than resigning. The court framed a single issue: whether the Claimant was entitled to the remedies sought, and deliberately declined to determine whether he resigned or deserted, treating the reliefs as independent of unfair termination. The court held that uniform costs are the employer's responsibility but the uniform refund claim was time-barred under Section 90 of the Employment Act and unquantified. Overtime and public holiday claims failed because the Claimant did not plead or prove the specific days worked; the court emphasized that submissions are not evidence. The leave claim failed as the Claimant admitted taking all outstanding days. Underpayment failed as the Claimant did not state his station of work. Service pay was barred by NSSF membership under Section 35(6). House allowance was excluded by the all-inclusive contractual salary, which the court would not rewrite. The Sacco refund claim lay against the Sacco as a separate legal entity. The penalty claim failed absent proof of loss. Judgment was entered only for a Certificate of Service, with each party bearing its own costs.

Key legal issues

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01

Entitlement to remedies sought in the Memorandum of Claim

Holding

Only the claim for a Certificate of Service succeeded; all other heads failed for limitation, want of evidence, lack of pleading specificity, or legal basis.

Reasoning

The court considered each relief independently of whether the separation was resignation or desertion. The uniform refund was time-barred and unquantified; overtime and underpayment claims failed for lack of specificity and evidence of station of work; service pay was barred by NSSF membership; house allowance was excluded by an all-inclusive contractual salary; the Sacco claim lay against a separate entity; and damages for non-issuance of a certificate required proof of loss.

p. 7

Legal principles established

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  • Where employment requires a uniform, the employer must provide it at its own cost; deducting its cost is an unfair labour practice (adopted from Peter Kimeu Mose v Mang Hotel).
  • Submissions do not equate to evidence and cannot substitute for it.
  • A claimant seeking overtime compensation must be specific on the days worked overtime and the public holidays worked without pay.
  • An employee is entitled to a Certificate of Service under Section 51 of the Employment Act regardless of the circumstances of separation.
  • A court will not rewrite contracts for parties but enforce them as executed.
  • An NSSF member is excluded from the statutory service pay scheme under Section 35(6) of the Employment Act.

Court orders

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  1. 1.The Claimant be issued with a Certificate of Service within 30 days of this Judgment.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Employment ActSection 51
  • Employment ActSection 74
  • Employment ActSection 90
  • Employment ActSection 35(5) and (6)
  • Employment ActSection 31
  • Employment ActSection 9
  • Employment ActSection 2
  • Regulation of Wages (Protective Security Services) Order1998
  • Regulation of Wages (General) (Amendment) Order2015
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Retirement Benefits Act

Cases cited (7)

  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Mary Mumbi Kariuki v Director, Pamoja Women Development Programme
    [2015] eklr
  • Charles Nguma Maina v Riley Services Limited
    [2018] eKLR
  • Sarah Angienda Oyange v One Heart Children Home & School
    [2017] eKLR
  • Peter Kimeu Mose and 13 Others v Mang Hotel and another
    [2015] eKLR
  • James Orwaru Nyaundi v Kilgoris Klassic Sacco Limited
    [2022] eKLR
  • Pius Kimaiyo Langat versus Co-operative Bank of Kenya Ltd
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Article 162(2) jurisdiction inferred; 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, "Muthomi v Brinks Security Services Limited (Employment and Labour Relations Cause 1590 of 2017) [2024] KEELRC 1715 (KLR)", Case Analysis (2024). Memorandum of Claim dated 14th August 2017 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1715/eng@2024-06-28

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