Tuwei v Winguard Services Ltd (Employment and Labour Relations Cause E1329 of 2022) [2025] KEMC 164 (KLR)
The bottom line
#A Nairobi security guard lost his entire unfair termination claim because he could not prove he was dismissed, and the court ordered him to pay the employer's costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant was fair and lawful
The claimant failed to prove unfair or wrongful termination; the evidence showed the claimant absconded duty after the KRA contract ended and opted to clear/resign rather than answer a show cause notice.
The court applied sections 45, 41 and 47(5) of the Employment Act and section 107 of the Evidence Act, placing the initial burden on the claimant to prove unfair termination on a balance of probabilities. The claimant's testimony contained contradictions on whether he sought redeployment. The respondent's witness, who testified the claimants absconded and chose to clear rather than undergo discipline, was found more credible. The claim therefore failed for want of proof.
Whether the respondent's failure to issue/renew an employment contract should attract penalisation under sections 16(2) and (4) of the Employment Act
Prayers (b) and (c) dismissed; the claimant was issued a one-year contract and non-express renewal operated to his advantage.
The claimant admitted receiving a one-year contract which lapsed. The court reasoned that continued work after expiry of a fixed-term contract may, by implication, be treated as permanent employment - a benefit to the employee. Since failing to expressly renew was to the claimant's advantage, there was no reason to punish the employer for non-renewal.
Whether the failure to pay for public holidays and overtime amounted to unfair labour practices
Both claims dismissed; the claimant did not prove he worked during public holidays or beyond agreed hours.
The respondent's unchallenged evidence was that KRA did not require security during holidays and Sundays except on special occasions. Relying on Patrick Lumumba Kimuyu v Prime Fuels and KUDHEIHA Workers v Charles Waithaka Goka, the court held the claimant had to first prove the specific days and hours worked over and above the contract (6am-6pm, Monday to Saturday) before any evidential burden shifted to the employer. No such proof was tendered.
Whether the claimant was paid below the statutory minimum wage and denied house allowance
Both claims failed; the consolidated salary exceeded the gazetted minimum wage and expressly included house allowance.
The claimant's contract provided a consolidated salary of Kshs. 14,500, later increased to Kshs. 15,000 per the pay slips, which exceeded the gazetted minimum wage for a day security guard in Nairobi of Kshs. 13,572.90. Although sections 18, 26, 31 and 48(1)(a) and (b) of the Employment Act and regulation 5 of the Regulation of Wages (Protective Services) Order support 15% house allowance, the court held the contractual salary was consolidated and inclusive of house allowance.
Whether the claimant was entitled to severance pay
Severance pay not allowed; it is payable only on redundancy under section 40 of the Employment Act, which did not occur.
The court explained that severance pay is mandated only where employment terminates through redundancy - where the employer initiates loss of employment because the role becomes superfluous - and may also arise where the contract expressly provides for it. The claimant's position was never declared redundant; he voluntarily abandoned employment by failing to report for redeployment and returning only after a week to clear.
Legal principles established
#- Fixed-term employment contracts do not automatically renew on expiry, but continued work without formal renewal may, to the employee's advantage, be deemed permanent by implication.
- In unfair termination complaints, the burden of proving that unfair termination or wrongful dismissal occurred rests on the employee, while the burden of justifying the grounds rests on the employer.
- The employer's duty to keep employment records does not absolve an employee from discharging the burden of proving an overtime claim; the employee must first show he worked the claimed days before the evidential burden shifts to the employer to show payment.
- Claims for overtime pay must be supported by a mathematically defensible, legally justifiable and factually credible system of overtime pay rather than wholesale claims of all holidays and hours.
- Severance pay in Kenya is a statutorily mandated compensation payable upon redundancy, calculated at 15 days' pay for each completed year of service.
- The object of exemplary or punitive damages is to punish and deter, mostly in cases involving state or government officials or where the respondent benefits excessively from its acts or omissions.
Court orders
#- 1.Prayer (b) and (c) (declaration for failure to issue employment contract and penalty under sections 16(2) and (4) of the Employment Act) dismissed
- 2.Prayers (d) and (e) (declaration on public holiday pay and punitive/exemplary damages) dismissed
- 3.Prayers (f) and (g) (declaration on salary below minimum wage and punitive/exemplary damages) dismissed
- 4.Claim for maximum compensation for wrongful dismissal and payment in lieu of notice rejected
- 5.Claims for house allowance, overtime, public holidays, leave days not taken and severance pay not proved and disallowed
- 6.The entire suit dismissed
- 7.Costs of the suit awarded to the respondent
- Jurisdiction invoked
- Employment and Labour Relations jurisdiction under the Employment Act, 2007 (original claim; specific constitutional/statutory jurisdictional provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tuwei v Winguard Services Ltd (Employment and Labour Relations Cause E1329 of 2022) [2025] KEMC 164 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/164/eng@2025-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.