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ELRCPartially AllowedNot stated in the judgment· [2012] KEELRC 97 (KLR)

NAMAREI ILWAS V AJAY VELJI SHAH [2012] KEELRC 97 (KLR)

Industrial Court of Kenya
5 December 2012
1,937 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan security guard unfairly dismissed without notice or hearing won Ksh.437,349, including house allowance, because a sentry house did not count as housing.

What this practically means

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Executive summary

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The claimant, a security guard employed by the Respondent at residential premises in Gigiri, Nairobi from 3rd March 1998, claimed he was verbally dismissed without notice on 29th February 2009 and sought Ksh.3,462,188 comprising payment in lieu of notice, arrears of rest days and public holidays, service pay, house allowance, accrued leave and overtime, plus underpaid leave and costs. The Respondent admitted employing and dismissing the claimant without notice, offering one month's salary in lieu, and admitted dues of about Ksh.88,477, while denying day-and-night duty and contending the claimant was accommodated at the sentry house. The court framed two issues: whether the dismissal was unfair and unlawful, and what remedies were due. It held that termination without notice or hearing was unfair and unlawful, awarded one month's notice pay, the admitted dues (service pay, unpaid rest days and holidays for 2007-2008, accrued leave), computed a balance of Ksh.79,040.44 for rest days and holidays from 1998 to 2006 after crediting Ksh.307,108 already paid, awarded house allowance at 15% of salary because the sentry house did not count as a house, and awarded six months' salary as damages for unfair dismissal - a total of Ksh.437,349. The overtime and underpaid leave claims failed as unproved. The claimant was also to receive a Certificate of Service, with costs to the claimant. Judgment was delivered at Nairobi on 5th December 2012 by Hellen Wasilwa, Judge.

Key legal issues

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01

Whether the claimant was unfairly and unlawfully dismissed

Holding

Yes - the Respondent admitted terminating without notice or hearing

Reasoning

The Respondent admitted terminating the grievant's services without notice and without a hearing, offering only one month's salary in lieu. The court held that termination otherwise than as required by law, without notice or hearing, is unfair and unlawful, settling the first issue in the claimant's favour.

p. 3
02

Whether the claimant is entitled to house allowance despite being accommodated at the sentry house

Holding

Yes - house allowance awarded at 15% of salary

Reasoning

The Respondent contended the claimant was provided accommodation. The court found the accommodation was the sentry house at the gate, where the claimant slept on carton boxes and cooked outside, which cannot count as a house. It awarded house allowance at 15% of salary for 10 years, totalling Ksh.197,880.

p. 4
03

Whether the balance of unpaid rest days and public holidays for March 1998 to September 2006 is payable

Holding

Yes - Ksh.79,040.44 awarded after reconciling the Ksh.307,108 already paid

Reasoning

The court computed 412 rest days and 90 holidays (502 days) at double the daily rate of 384.61, totalling Ksh.386,148.44. Since the claimant was paid Ksh.307,108, the balance of Ksh.79,040.44 remained unpaid and was awarded.

p. 4
04

Whether the overtime claim for working day and night is proved

Holding

No - claim declined

Reasoning

The claimant alleged he worked 24 hours for 10 years. The court found this practically impracticable; the claimant conceded he went on leave and one Ishmael stood in for him, and CW3 corroborated that he could stand in when the claimant went out. The claim was therefore not proved.

p. 4

Legal principles established

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  • Termination without notice and without a hearing is unfair and unlawful
  • A sentry house at the gate does not amount to provision of a house for purposes of house allowance

Court orders

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  1. 1.1 month's salary in lieu of notice – Ksh.10,991
  2. 2.Service pay – Ksh.69,750
  3. 3.Unpaid rest days and public holidays 2007 to February 2008 – Ksh.4,752
  4. 4.Accrued but untaken leave for the period November 2007 up to February 2008 – Ksh.2,954
  5. 5.Balance of unpaid arrears, rest days and public holidays from March 1998 to 30th September 2006 – Ksh.79,040.44
  6. 6.House allowance at 15% of salary (1649 x 10 x 12) – Ksh.197,880
  7. 7.6 months' salary as damages for unfair dismissal – Ksh.71,982, bringing total awarded to Ksh.437,349
  8. 8.Claimant to be issued with a Certificate of Service
  9. 9.Respondent to meet costs of the suit
Jurisdiction invoked
Original employment and labour relations jurisdiction (memorandum of claim for unfair and unlawful dismissal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "NAMAREI ILWAS V AJAY VELJI SHAH [2012] KEELRC 97 (KLR)", Case Analysis (2012). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/97/eng@2012-12-05

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