Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNakuru CMELRC Cause No. 297 of 2019 (Appeal)

Brinks Security Limited v Mangu (Employment and Labour Relations Appeal 16 of 2022) [2024] KEELRC 739 (KLR)

Employment and Labour Relations Court
19 March 2024
2,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court upheld a security guard's unfair termination award, ruling the employer must prove any contract changes with documented evidence.

What this practically means

#

Executive summary

#
This was a first appeal to the Employment and Labour Relations Court at Nakuru against the judgment of Hon. J. B Kalo delivered on 20th June 2022 in Nakuru CMELRC Cause No. 297 of 2019. The claimant, a dog handler employed verbally from 31st December 2014 at Kshs 9,000 rising to Kshs 10,700, alleged oral termination on 1st April 2017 without notice or fair hearing, plus underpayment, unpaid overtime, public holidays and leave. The employer contended that its contract with Safaricom ended, the claimant opted to be absorbed by the successor Casa Security Limited, and he signed a certificate of release upon receiving Kshs 14,694.58 terminal dues. The trial court found unfair termination and awarded Kshs 430,583.10 covering six months' salary compensation, leave, March 2017 salary, underpayments and overtime, with costs and interest. On appeal, canvassed by written submissions, Justice Hellen Wasilwa re-evaluated the evidence as the first appellate court. She held the burden of proving changes to the employment contract rests on the employer under section 10(5) and (7) of the Employment Act, and the Appellant exhibited no evidence of a fresh contract or of the claimant's absorption by the sister company. Upholding the finding of unfair termination - no disciplinary hearing, no notice, no payment per scale - she found no reason to disturb the trial court's judgment, dismissed the appeal with costs, and ordered the Appellant to pay costs of both the lower court and the appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in finding that the Respondent was unfairly terminated
  2. 2.Whether the trial court erred in awarding notice pay, compensation, leave pay, March 2017 salary, underpayments and overtime
  3. 3.Whether claims for overtime, house allowance, off days' pay and public holidays pay are barred by section 90 of the Employment Act

Key legal issues

#
01

Whether the Respondent was unfairly terminated or merely redeployed/absorbed by a successor company

Holding

The finding of unfair termination was upheld; the employer failed to prove any variation or fresh contract with the successor company

Reasoning

The trial court found the claimant was orally terminated without notice or disciplinary hearing. On appeal, the court held the burden of proving changes to the contract rests on the employer under section 10(5) and (7) of the Employment Act, and the Appellant produced no evidence of a fresh contract or agreement to join the sister company. The court declined to disturb the trial court's finding.

p. 5
02

Whether the trial court's awards (notice pay, compensation, leave, underpayments, overtime) were supported by evidence

Holding

The court found no error warranting disturbance of the awards

Reasoning

The court re-evaluated the evidence as required on a first appeal and found the respondent was never subjected to a disciplinary hearing, was not served with notice and was not paid per scale, so the trial court's awards were justified and there was no basis for interference.

p. 6

Legal principles established

#
  • On a first appeal the court has a mandate to re-evaluate the evidence and make its own finding
  • Where an employer fails to produce a written contract or prescribed particulars, the burden of proving or disproving an alleged term of employment rests on the employer (section 10(5) & (7), Employment Act)

Court orders

#
  1. 1.Appeal dismissed with costs
  2. 2.The Appellant shall pay costs of both the lower court and of this appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court (Nakuru CMELRC Cause No. 297 of 2019)
Nakuru CMELRC Cause No. 297 of 2019
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court from the magistrates' court

Relief refused

#

Appeal be allowed with costs and the claimant's suit in the lower court be dismissed with costs

The court found no error in the trial court's judgment and no reason to disturb it

p. 6

Costs of the Appeal be awarded to the Appellant

Appeal dismissed with costs awarded against the Appellant

p. 6

Costs

The Appellant shall pay costs of both the lower court and of this appeal

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.

This is the 1st appeal to this court and therefore this court has a mandate to re-evaluate the evidence and make a finding accordingly.
p. 5duty of first appellate court
The burden of proving the changes in the contract of the Appellant/Respondents rests on the employer, the appellant herein and I find that burden of proving the changes in the contract with the Respondent has not been discharged.
p. 5burden of proof on employer under section 10(5) & (7) Employment Act
I find the appeal lacks merit and I dismiss it with costs. The Appellant shall pay costs of both the lower court and of this appeal.
p. 6disposition
He was never subjected to any disciplinary hearing. He was not served with any notice and neither was he paid as per scale.
p. 6unfair termination findings

Issues in the judgment

#
minor

The judgment contains numbered headings '1.' and '2.' with no text under them before paragraph 3

minor

The court does not expressly address the Appellant's limitation argument under section 90 of the Employment Act

minor

Respondent's submissions state he was paid Kshs 10,200 whereas the claim pleaded Kshs 10,700

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Brinks Security Limited v Mangu (Employment and Labour Relations Appeal 16 of 2022) [2024] KEELRC 739 (KLR)", Case Analysis (2024). Nakuru CMELRC Cause No. 297 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/739/eng@2024-03-19

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