James Okoth Wasonga v Commercial Director Kenya Education Trust Limited Pembroke House [2014] KEELRC 921 (KLR)
The bottom line
#A Kenyan court upheld a security guard's dismissal but ordered his employer to pay the Kshs.57,661 it owed him, plus interest if late.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was unfair
The termination was not unfair; it was for a valid reason (poor performance in failing to patrol and raise alarm) and due process was followed including a hearing on appeal
The termination letter showed the claimant attended a disciplinary meeting at which poor performance was discussed. He appealed and was heard. The claimant failed to exculpate himself or show that due process and fairness were breached, while the respondent showed the reason for termination was valid. Dismissal was for poor performance, not for aiding the robbery.
Whether the claimant was entitled to overtime and underpayment claims
Both claims failed for want of evidence of any grievance or of the amounts claimed during the employment
The respondent's witness testified that overtime was paid monthly within gross pay to enhance creditworthiness for bank loans, and the court found no ground to doubt that evidence. The claimant admitted unawareness of the amount of underpayment, and no dispute on pay arose during employment.
What sums were admitted and payable to the claimant
The claimant was entitled to Kshs.57,661.00, being the cheque he declined which included the sum over-taxated as confirmed by KRA
The respondent's witness testified that the cheque of Kshs.57,661.00 the claimant declined included the sum of over-taxation of about Kshs.40,000.00, and that if accepted the respondent would owe no more. The court found the claimant entitled to that admitted sum and factored the respondent's late payment effort into a reduced costs award.
Legal principles established
#- Where an employer establishes a valid reason for termination and accords the employee a hearing including on appeal, the termination is not unfair
- A claimant who seeks underpayment or overtime must provide evidence of the amounts claimed and of a grievance raised during employment
- An employer's late attempt to pay an admitted amount after suit is filed will have a bearing on the award of costs
Court orders
#- 1.The respondent to pay the claimant Kshs.57,661.00 in 7 days, failing which interest to be payable at court rates from the date of the suit (23.09.2013) till full payment
- 2.A declaration that the claimant's termination from employment by the respondent was not unfair
- 3.The respondent to pay 25% of the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (section 49 invoked in the claim); the judgment does not expressly cite a constitutional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Okoth Wasonga v Commercial Director Kenya Education Trust Limited Pembroke House [2014] KEELRC 921 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/921/eng@2014-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.