Brinks Security Limited v Mangu (Employment and Labour Relations Appeal 16 of 2022) [2024] KEELRC 739 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding that the Respondent was unfairly terminated
- 2.Whether the trial court erred in awarding notice pay, compensation, leave pay, March 2017 salary, underpayments and overtime
- 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
#Whether the Respondent was unfairly terminated or merely redeployed/absorbed by a successor company
The finding of unfair termination was upheld; the employer failed to prove any variation or fresh contract with the successor company
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.
Whether the trial court's awards (notice pay, compensation, leave, underpayments, overtime) were supported by evidence
The court found no error warranting disturbance of the awards
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.
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.Appeal dismissed with costs
- 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.
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
Costs of the Appeal be awarded to the Appellant
Appeal dismissed with costs awarded against the Appellant
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.
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.
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.
He was never subjected to any disciplinary hearing. He was not served with any notice and neither was he paid as per scale.
Issues in the judgment
#The judgment contains numbered headings '1.' and '2.' with no text under them before paragraph 3
The court does not expressly address the Appellant's limitation argument under section 90 of the Employment Act
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.