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ELRCPartially AllowedCause Number 297 of 2014· [2015] KEELRC 1487 (KLR)

Andrew Tune Kiringi v Nicola Radichi [2015] KEELRC 1487 (KLR)

Industrial Court of Kenya at Mombasa
6 February 2015
JRJames Rika
1,495 words in judgment
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The bottom line

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A Kenyan security guard won his unfair termination case but received far less than claimed because his pleadings were vague and unsupported.

What this practically means

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Executive summary

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This was an undefended employment claim before the Industrial Court at Mombasa in which Andrew Tune Kiringi, a security officer employed by Nicola Radichi from 1st June 2006 at a gross salary later reviewed to Kshs. 8,000 per month, sued for unfair and unlawful termination in November 2013. The Respondent was served with summons and hearing notices but neither entered appearance nor filed a response, and the claim proceeded undefended. The Claimant sought a declaration that termination fell under redundancy provisions, four months' salary, three months' notice pay, compensation for unlawful termination, leave pay, Kshs. 672,000 in underpayments and Kshs. 250,000 in severance, totalling Kshs. 1,098,000, with interest. The Court found the pleadings and evidence wanting: prayers were unclear, the redundancy claim had no factual basis, the underpayment figure was unsupported, and the claimant cited a non-existent statute. Emphasising that parties and counsel must assist the Court under Section 3(3) of the Industrial Court Act 2011, the Court nonetheless found, in the absence of any evidence from the Respondent, that the contract was unfairly terminated and that the Respondent failed to justify termination under Sections 43, 45 and 47 of the Employment Act 2007. The Court awarded 6 months' salary (Kshs. 48,000) as compensation for unfair termination, 1 month's salary in lieu of notice (Kshs. 8,000), and gratuity of Kshs. 38,769.20 under the Regulation of Wages (Protective Security Services) Order, totalling Kshs. 94,769.20. All other heads of claim were rejected and no order was made on costs and interest, each party bearing their own costs.

Key legal issues

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01

Whether termination was unfair

Holding

Unfair termination proved; Respondent, absent, failed to justify termination under Sections 43, 45 and 47 of the Employment Act 2007

Reasoning

The claim was undefended. The Court was prepared to find the claimant demonstrated unfair termination since the Respondent adduced no evidence to justify it. Compensation was fixed at 6 months' salary rather than the 12 months apparently claimed, reflecting the claimant's poor presentation of his case.

p. 3
02

Whether redundancy-based terminal benefits were payable

Holding

No redundancy situation was pleaded or proved; only gratuity under the Protective Security Services Order was awarded

Reasoning

The claimant framed his terminal benefits claim under redundancy provisions but his pleadings and evidence disclosed no redundancy. The Court instead granted gratuity of 18 days' salary per completed year for 7 years, as applicable to guards exiting on regular termination.

p. 2
03

Duty of parties and counsel to assist the Court

Holding

The claimant and his representatives failed in their duty under Section 3(3) of the Industrial Court Act 2011, which limited the assistance the Court could give

Reasoning

Although the Court assists employees due to unequal bargaining power, claimants represented by advocates or unions must present claims clearly. The pleadings here were vague, prayers unclear, and submissions unhelpful, justifying a reduced award despite the respondent's absence.

p. 3

Legal principles established

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  • Where a respondent offers no evidence and the claimant proves unfair termination, the employer bears the burden of justifying termination under Sections 43, 45 and 47 of the Employment Act 2007
  • Parties and their representatives must assist the Court in the just, expeditious and proportionate resolution of disputes under Section 3(3) of the Industrial Court Act 2011
  • The Industrial Court is reluctant to dismiss employment claims out of hand because employees lack bargaining strength
  • Security guards under the Protective Security Services Order are entitled to gratuity of 18 days' salary per completed year after 5 years of service on regular termination, but not where summarily dismissed

Court orders

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  1. 1.Declaration that termination of the Claimant's contract of employment was unfair
  2. 2.Respondent to pay 6 months' salary in compensation for unfair termination at Kshs. 48,000
  3. 3.Respondent to pay 1 month salary in lieu of notice at Kshs. 8,000
  4. 4.Respondent to pay gratuity of Kshs. 38,769.20
  5. 5.Total award of Kshs. 94,769.20
  6. 6.No order on costs and interest

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Labour Institutions ActNo. 12 of 2007
  • Industrial Court ActSection 3(3)
  • Employment ActSections 43, 45 and 47
  • Regulation of Wages (Protective Security Services) OrderClause 6 and gratuity provisions
Jurisdiction invoked
Industrial Court Act 2011; Industrial Court (Procedure) Rules 2010, Rule 27(1)(a)

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, "Andrew Tune Kiringi v Nicola Radichi [2015] KEELRC 1487 (KLR)", Case Analysis (2015). Cause Number 297 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1487/eng@2015-02-06

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