Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 699 of 2012· [2015] KEELRC 572 (KLR)

Joshua Mungoki Ngolwa v KK Services Limited [2015] KEELRC 572 (KLR)

Employment and Labour Relations Court
14 August 2015
LNLINNET NDOLO
1,373 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a security guard over Kshs.153,000 because his employer handed him a termination letter without first hearing his side of the story.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent and deployed as a security officer at the American Embassy in Nairobi, claimed compensation for wrongful and unfair termination following his dismissal in September 2009 after a complaint that he solicited money from an Embassy resident. The Respondent justified the dismissal on grounds of misconduct and cited the Claimant's poor disciplinary record, asserting that all terminal dues were paid. The Court framed two issues: whether the termination was justifiable and fair, and whether the Claimant was entitled to the remedies sought. Applying Sections 43 and 41 of the Employment Act, 2007, the Court held that although the Respondent had reasons for termination, it failed to follow the mandatory disciplinary procedure; the explanation given on the day of termination, with a termination letter already in hand, denied the Claimant the right to be heard, and the alleged disciplinary record was never put to him for response. The termination was therefore substantively and procedurally unfair. On remedies, the Court fixed the employment period as 29th September 2002 to 29th September 2009, relying on the letter of appointment and uncontested certificates of service, and rejected the Respondent's claim of breaks in service. The Court awarded seven months' salary as compensation and service gratuity at 18 days' pay per year under the Regulation of Wages (Protective Security Services) Order, totalling Kshs.153,138.00. Claims for notice and leave pay failed, notice pay having been made and no evidence led on leave pay. The award attracts interest at court rates, with costs to the Claimant.

Key legal issues

#
01

Procedural fairness of the termination

Holding

The termination was procedurally unfair because the Claimant was not taken through the disciplinary process contemplated by Section 41 of the Employment Act

Reasoning

Section 43 requires the employer to demonstrate valid reasons for termination, while Section 41 requires explanation of the reasons to the employee in a language he understands, presence of a representative, and hearing of explanations. The Respondent's witness admitted the explanation was given on the same day as termination, which is summary procedure not anticipated by Section 41. The alleged negative employment record incidents were also never put to the Claimant to respond to.

p. 2
02

Employment period for purposes of remedies

Holding

The Claimant's employment ran continuously from 29th September 2002 to 29th September 2009

Reasoning

The Claimant's assertion of a 2001 start date was unsupported by evidence of terms of engagement prior to the letter of appointment dated 23rd September 2002, which gave an effective date of 29th September 2002. The Respondent's allegation of breaks in service in 2007 and 2008 was contradicted by certificates of service issued in 2009 and 2011 showing no break, and the certificate of service is reliable evidence unless contested.

p. 3
03

Entitlement to service gratuity

Holding

The Claimant, as a security officer governed by the Regulation of Wages (Protective Security Services) Order, was entitled to service gratuity at 18 days' pay per completed year of service

Reasoning

The Court distinguished service gratuity from service pay, holding that unlike service pay, gratuity is not affected by NSSF membership. Applying the applicable Wages Order rate to the seven-year employment period fixed by the Court, gratuity was computed as Kshs.57,427.00.

p. 3

Legal principles established

#
  • An employer must demonstrate a valid reason for termination and follow the disciplinary procedure under Section 41 of the Employment Act; meeting an employee with a termination letter in hand denies the employee the right to be heard
  • A certificate of service, unless contested, provides reliable evidence of an employee's employment period

Court orders

#
  1. 1.7 months' salary in compensation for unfair termination, Kshs.95,711.00
  2. 2.Service gratuity for 7 years, Kshs.57,427.00
  3. 3.Total award of Kshs.153,138.00 to the Claimant
  4. 4.Interest at court rates from the date of the award until payment in full
  5. 5.Claimant awarded costs of the case

Authorities

#

Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Regulation of Wages (Protective Security Services) Order
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joshua Mungoki Ngolwa v KK Services Limited [2015] KEELRC 572 (KLR)", Case Analysis (2015). Cause No 699 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/572/eng@2015-08-14

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