Omwenga v Pinkertons Kenya Limited (Appeal 151 of 2022) [2024] KEELRC 1890 (KLR)
The bottom line
#Winning by default in Kenya's employment courts isn't enough—you must still prove your claim, and the ELRC appellate court reversed an unfair termination award for lack of evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Appellant's employment was unfair or unlawful
The Appellant failed to prove unfair or unlawful termination; he resigned voluntarily when not allocated duties, and constructive dismissal was not established
The court found that the claimant's own witness statement showed he resigned voluntarily when not deployed, without alleging the employer left him no option but to quit. The resignation letter (SOA 2) was never attached, leaving the circumstances of separation unproven. Uncontroverted evidence alone was insufficient, and the trial Magistrate's finding of unfair termination lacked evidential analysis.
The duty of a first appellate court on facts
The appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions (Selle v Associated Motor Boat Co)
As a first appeal, the court is not bound by the trial court's factual findings and may re-evaluate the evidence, subject to the caveat that it did not see or hear the witnesses. Applying this standard, the court revisited the evidence on the nature of the separation and disagreed with the trial Magistrate's finding of unlawful termination.
Whether salary for April 2021 was unpaid
Not proved; the bank statement ended on 6th March 2021 and could not establish non-payment of April 2021 salary
The court agreed with the trial Magistrate. The bank statement reflected no salary in January or February 2021 nor in May to July 2021, yet the claimant only claimed April 2021 and gave no explanation for this selective claim. The document therefore could not prove the April 2021 arrears.
Service pay
Claim disallowed as the Appellant was an NSSF member, disqualified under Section 35(6)(d) of the Employment Act
The payslips showed NSSF deductions were being made and the Appellant did not allege non-remittance. Section 35(6)(d) of the Employment Act, 2007 disqualifies members of the NSSF from service pay, so the claim for Kshs.136,500 service pay failed.
Underpayment
Awarded for 3 years prior to separation at Kshs.156,932.73, applying limitation principles to stale claims
While employers are bound to pay the statutory minimum wage and failure is a breach of the employee's entitlement, courts do not enforce stale claims. The court therefore limited the underpayment award to the 3 years preceding separation in 2021, awarding Kshs.156,932.73.
Legal principles established
#- In an undefended claim, the claimant must still prove all the facts of the claim on a balance of probabilities; uncontroverted evidence is not sufficient proof
- A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses
- NSSF members are disqualified from service pay under Section 35(6)(d) of the Employment Act
- Employers must pay at least the minimum wage prescribed by the Regulation of Wages Orders; failure is a breach of the employee's statutory entitlement
Court orders
#- 1.The finding that termination of the Appellant's employment was unlawful is set aside and in its place a finding that the Appellant failed to prove on a balance of probabilities that termination of employment was unfair
- 2.The Appellant's suit grounded on unfair and unlawful termination of employment stands dismissed save for unpaid leave days for 2 years Kshs.18,200.00 and underpayment Kshs.156,932.73, total Kshs.175,132.73
- 3.The Appellant is awarded costs of this appeal
- 4.Costs awarded by the trial court are set aside
- On appeal from
- Magistrates' Court (trial court)
- Suit founded on Memorandum of Claim dated 5th November, 2021
- Jurisdiction invoked
- First appeal from the trial Magistrate's court to the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omwenga v Pinkertons Kenya Limited (Appeal 151 of 2022) [2024] KEELRC 1890 (KLR)", Case Analysis (2024). Not stated in judgment (Memorandum of Claim dated 5th November, 2021; appeal against judgment dated 30th June, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1890/eng@2024-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.