Paul Iling'a Ichilayi v Gilly's Security & Investigation Services Ltd [2016] KEELRC 789 (KLR)
The bottom line
#A Kenyan court awarded a security guard over Kshs.338,000 after his employer failed to prove why and how it dismissed him.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's employment was unfairly terminated
The claimant was unfairly dismissed; the employer neither proved a valid reason nor complied with sections 41 and 43 of the Employment Act
There was no letter of termination. The respondent alleged absconding, yet paid the claimant salary for 30 days worked in October, refunded a uniform deduction, and a clearance form was signed by the claimant and RW2 - all inconsistent with abscondment. Allegations of sleeping on the job were unsupported by evidence. Absent proof of reason and procedure, the termination was unfair.
Whether employment terms below statutory minimum are enforceable
No; statutory minimum terms under the Employment Act and wages orders apply regardless of agreement
The claimant was paid Shs.5,000 per month, below the statutory minimum wage, and was never paid house allowance, never went on annual leave and worked on public holidays, as admitted by the respondent's witnesses. Sections 26 of the Employment Act and 48 of the Labour Institutions Act make wages order terms non-derogable, so the agreed inferior terms were illegal and unenforceable.
Quantum of compensation for unfair termination
12 months' salary sought was excessive; 2 months' salary (Kshs. 22,428.80) awarded
The court exercised discretion considering all circumstances, especially the claimant's length of service, and awarded two months' salary computed as statutory basic salary plus house allowance.
Legal principles established
#- An employer must prove the reason for termination; failure to do so renders the termination unfair
- It is unlawful to contract out of statutory minimum employment terms; such an agreement is illegal and unenforceable
Court orders
#- 1.Respondent to pay notice Kshs. 11,214.40
- 2.Respondent to pay leave Kshs. 15,410.34
- 3.Respondent to pay house allowances Kshs. 55,320.07
- 4.Respondent to pay underpayments Kshs. 206,549.28
- 5.Respondent to pay public holidays Kshs. 27,289.11
- 6.Respondent to pay compensation Kshs. 22,428.80 (2 months' salary)
- 7.Respondent to pay claimant's costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Labour Institutions Act)
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.
Cite this brief
#Cite this brief
Caselaw, "Paul Iling'a Ichilayi v Gilly's Security & Investigation Services Ltd [2016] KEELRC 789 (KLR)", Case Analysis (2016). Cause No. 283 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/789/eng@2016-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.