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ELRCPartially AllowedCause No 588 of 2010· [2013] KEELRC 894 (KLR)

Isaac Simiyu v Security Group (K) Limited & another [2013] KEELRC 894 (KLR)

Industrial Court of Kenya
15 November 2013
LNLinnet Ndolo
1,818 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a dismissed security guard Kshs. 34,760 but ruled the 2007 Employment Act doesn't apply to dismissals that happened before June 2008.

What this practically means

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Executive summary

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The Claimant, employed by the respondents interchangeably from March 1997, was demoted from driver to security guard in November 2007, suspended in January 2008 for allegedly absconding duty at Asai Motors, and summarily dismissed on 11th February 2008. He claimed unpaid salary, notice pay, 12 months' compensation for unfair termination, leave allowance, severance pay, general and exemplary damages, and an order compelling the respondents to service a guaranteed Equity Bank loan. The respondents admitted employing him but justified the dismissal as lawful desertion of duty. The court first found both respondents properly joined, their witness having described them as sister companies with the same directors, and fixed the Claimant's salary at Kshs. 11,335. On the substance, the court held that the Employment Act, 2007, which commenced on 2nd June 2008, could not apply retrospectively to a cause of action arising on 11th February 2008; the repealed Employment Act (Cap 226) therefore governed, under which an employer could terminate on notice without assigning reasons or holding a hearing. Converting the summary dismissal to a normal termination, the court awarded one month's salary in lieu of notice, pay in lieu of 21 days' leave for 2007, salary for January 2008 and for 11 days in February 2008, totalling Kshs. 34,760. Claims for severance, service pay, damages and the loan were rejected; the respondents were ordered to pay costs.

Key legal issues

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01

Proper joinder of the two respondents

Holding

The 1st and 2nd Respondents were properly joined as the Claimant worked for them interchangeably

Reasoning

The Respondents' witness testified the two companies were sister companies with the same directors; the 1st dealt with alarm systems while the 2nd provided guarding services. The court found a close nexus between the companies and that the Claimant moved between them, so joinder was proper.

p. 2
02

Applicable law to the termination

Holding

The repealed Employment Act (Cap 226) applies, not the Employment Act, 2007

Reasoning

The cause of action arose on 11th February 2008, before the Employment Act, 2007 commenced on 2nd June 2008. As there is no retrospective application, the repealed law applies, under which termination was valid upon notice without reasons or viva voce hearing, per Barclays Bank of Kenya Ltd v Joseph Mwaura Njau.

p. 3
03

Whether the dismissal was unfair and what remedies flow

Holding

The summary dismissal was converted to a normal termination; the Claimant was awarded notice pay, leave pay for 2007 and salary arrears

Reasoning

Looking at all the circumstances and with the repealed law in view, the court converted the summary dismissal to a normal termination, awarding one month's salary in lieu of notice. Leave records were not produced to prove leave taken in 2007, so leave pay was awarded. Severance, service pay and the loan claim failed.

p. 3
04

The Claimant's actual salary

Holding

The court adopted Kshs. 5,796 basic salary, Kshs. 1,000 house allowance, Kshs. 3,303 normal overtime and Kshs. 1,236 holiday overtime, making Kshs. 11,335

Reasoning

The payslip for January 2008 showed a basic salary of Kshs. 5,350 with no explanation for the discrepancy from Kshs. 5,796. The court adopted the higher figure plus the overtime and house allowance figures, fixing the salary for purposes of the claim at Kshs. 11,335.

p. 3

Legal principles established

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  • The Employment Act, 2007 does not apply retrospectively to employment contracts terminated before its commencement on 2nd June 2008; the repealed Employment Act (Cap 226) governs such cases
  • Under the repealed Employment Act, a monthly contract of service was terminable by either party by giving notice in writing, without assigning any reason
  • Where two companies are sister companies with the same directors and an employee worked for them interchangeably, they are properly joined in the claim

Court orders

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  1. 1.1 month's salary in lieu of notice - Kshs. 11,335
  2. 2.Pay in lieu of 21 days' leave - Kshs. 7,934
  3. 3.Salary for January 2008 - Kshs. 11,335
  4. 4.Salary for 11 days in February 2008 - Kshs. 4,156
  5. 5.Total award of Kshs. 34,760
  6. 6.The Respondents to meet the costs of the case

Authorities

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Legislation

  • Employment Act, 2007
  • Employment Act (Repealed)Section 14(5)(iii)

Cases cited (1)

  • Barclays Bank of Kenya Ltd Vs Joseph Mwaura Njau
    [2006] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court under the Employment Act, 2007 and the repealed Employment Act (Cap 226)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Isaac Simiyu v Security Group (K) Limited & another [2013] KEELRC 894 (KLR)", Case Analysis (2013). Cause No 588 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/894/eng@2013-11-15

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