Moses Ojanji Khasaya v Wasso Security Company Limited [2013] KEELRC 797 (KLR)
The bottom line
#A Kenyan security guard fired without notice or a hearing won Kshs.299,788.90, showing employers must follow fair dismissal procedures and pay all dues.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination
The termination was unfair as the claimant was denied notice, reasons and a hearing on the allegation that he received Kshs.500.00 from a client
Section 35 read with section 41 of the Employment Act requires notice in writing and an opportunity to be heard before termination for misconduct. The claimant challenged the allegation of receiving Kshs.500.00 but was never given details or a chance to defend himself. Basing a termination on an untested, contested allegation without a hearing is procedurally unfair.
Terminal dues on summary dismissal
All salary due and worked for, including unpaid March 2012 salary, April 2012 days, pending leave and off days, must be paid
Even where an employee is summarily dismissed for gross misconduct, all earned salary, accrued leave days and off days fall due and must be quantified and paid in cash at termination. The claimant was never paid for March 2012 or his April 2012 days, and 63 leave days and 36 off days remained outstanding.
Underpayment against Wage Orders
The claimant was underpaid from 2009 to 2012 and awarded Kshs.75,014.60 as claimed
The court examined the applicable Wage Orders and Guidelines for the period and verified the claimant's computation showing underpayments of Kshs.10,378.20 (2009), Kshs.19,817.41 (2010), Kshs.39,789.40 (2011) and Kshs.12,029.59 (2012). The respondent, having not appeared, did not rebut these figures.
House allowance claim
Declined for lack of particulars
Although house allowance was claimed for two years, the claimant did not specify the years or show how the quantum was computed. The evidence and submissions left the amount unclear, so the court declined the head despite the general entitlement under the Wage Orders.
Legal principles established
#- Termination must comply with sections 35 and 41 of the Employment Act: an employee alleged to have committed misconduct must be given notice, reasons and a hearing; absence of notice or hearing renders termination procedurally unfair.
- On termination all salary due and worked for, including pending leave and off days, must be paid in cash.
- Deducting NSSF dues without remitting them warrants sanction and invites criminal proceedings, and service pay may be awarded to the employee.
- Unjustified salary deductions such as for insurance without accruing benefit amount to an unfair labour practice and must be refunded.
- Uniforms for a night watchman are tools of trade the employer must provide; deductions for them should be met by the employer.
Court orders
#- 1.A declaration that the claimant was unfairly terminated
- 2.Compensation for 12 months pay amounting to Kshs.114,859.80
- 3.One month pay in lieu of notice at Kshs.9,571.65
- 4.Unpaid salary for March 2012 at Kshs.9,571.65
- 5.4 days unpaid salary for April 2012 at Kshs.1,837.20
- 6.Pay for 63 days of leave at Kshs.30,150.00
- 7.Pay for 36 off duty days at Kshs.30,720.00
- 8.Refund of insurance deductions at Kshs.720.00
- 9.Refund for uniforms at Kshs.8,200.00
- 10.Underpayments at Kshs.75,014.60
- 11.Service pay for 4 completed years at Kshs.19,144.00 (total award Kshs.299,788.90)
- 12.Claimant to be issued with a Certificate of Service within 14 days
- 13.Costs of the suit awarded to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance unfair termination claim; no specific constitutional provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Daniel Ouma Orawo v Midrock Water Dlilling Company Limited [2015] KEELRC 375 (KLR)[2015] KEELRC 375 (KLR)28 Sept 2015
Cite this brief
#Cite this brief
Caselaw, "Moses Ojanji Khasaya v Wasso Security Company Limited [2013] KEELRC 797 (KLR)", Case Analysis (2013). Cause No. 2820 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/797/eng@2013-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.