Paul Maina Gichohi v Hatari Security Guards [2020] KEELRC 1442 (KLR)
The bottom line
#A Kenyan court dismissed a manager's claims for various dues after resignation and ordered him to pay his former employer Ksh.598,200 over ghost-worker fraud.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was entitled to disturbance allowances for transfers, uniform refund, payment for work on public holidays, refund for purchase of sniff dogs, wage arrears, severance pay, service pay, leave days and off days
- 2.Whether the claimant resigned due to frustration and harassment entitling him to a remedy
- 3.Whether the respondent proved its counter-claim for Ksh.598,200 arising from employment of ghost workers
Key legal issues
#Entitlement to terminal dues after resignation
All the claims for disturbance allowance, uniform refund, public holiday pay, sniff dogs refund, wage arrears, severance pay, leave and off days failed for lack of particulars and proof; only the certificate of service was due
The court found the claims were general and unsupported. Leave taken exceeded statutory entitlement under section 28(2). Severance pay applies only to redundancy. The claimant resigned voluntarily and sought no specific remedy for the alleged frustration. The only entitlement flowing from the resignation was a certificate of service under section 51 of the Employment Act.
Service pay raised at submissions stage
Service pay under section 35(5) could not be awarded as the claimant pleaded severance pay, not service pay
The claimant pleaded severance pay but urged service pay in submissions. The court held that a party cannot amend pleadings through submissions, as this would ambush the opposing party and deny it an opportunity to reply.
Counter-claim for ghost workers fraud
The counter-claim for Ksh.598,200 was allowed as uncontroverted and supported by audit evidence
There was no defence or reply to the counter-claim. The respondent's witnesses testified that a staff audit revealed ghost workers whose wages the claimant processed, causing a loss of Ksh.598,200. The matter had been reported to police. The court found the respondent had a genuine and reasonable cause and entered judgment for the counter-claim.
Legal principles established
#- Disturbance allowance on transfer is only payable where there is a contractual or agreed entitlement
- An employee must particularise wrongful conduct under section 47(5) of the Employment Act for general claims to succeed
- A party cannot introduce a new claim in submissions that was not pleaded
- Severance pay is only due upon redundancy under section 40 of the Employment Act, not on resignation
- An employer who proves loss from employee fraud is entitled to judgment on an uncontroverted counter-claim
Court orders
#- 1.The claimant's claim is dismissed
- 2.Judgment entered for the respondent on the counter-claim for Ksh.598,200 to be paid with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court
Relief refused
#Claim for disturbance allowances for 3 transfers
Not a matter addressed in law; only awardable where there is an agreement or contractual term
Claims for public holidays, off days, wage arrears, uniform refund and sniff dogs
General claims without particulars denied the employer material to reply; no proof of the dog purchase
Claim for severance pay
Severance pay relates to redundancy under section 40; the claimant resigned
Claim for service pay pleaded in submissions only
A party cannot change pleadings at submissions stage
Remedy for frustration at work
No specific remedy sought in this regard
Costs
Judgment entered for the respondent for the counter-claim of Ksh.598,200 to be paid with costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the claimant’ claim is hereby dismissed. Judgement is hereby entered for the respondent for the counter-claim of Ksh.598,200 to be paid with costs.
What is thus dues is the Certificate of Service under the provisions of section 51 of the Employment Act, 2007.
Where there are general claims made, this denies the employer material for which to offer a reply.
He cannot change his pleadings at the submissions stage. This would be to ambush the respondent and deny it a reply therefrom.
Issues in the judgment
#Judgment contains conflicting leave computations, stating both 42, 63 and 105 total leave days taken between July and October 2017
Judgment states there was no defence to the counter-claim before the claimant's defence is described
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Maina Gichohi v Hatari Security Guards [2020] KEELRC 1442 (KLR)", Case Analysis (2020). Cause No. 65 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1442/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.