Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 283 of 2013· [2016] KEELRC 789 (KLR)

Paul Iling'a Ichilayi v Gilly's Security & Investigation Services Ltd [2016] KEELRC 789 (KLR)

Employment & Labour Relations Court
26 May 2016
1,697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The claimant, a night security guard employed by the respondent at Kisumu, alleged he was verbally dismissed on 23rd October 2012 after being told there was no work, and claimed notice pay, October salary, leave, house allowance, off days, underpayments, public holiday pay and 12 months' compensation totalling Kshs.515,221.75. The respondent denied dismissal, asserting the claimant absconded after being told he would be shifted to a day job or posted to Homabay. The court found no letter of termination existed and that the respondent's own conduct - paying October salary, refunding a uniform deduction, and signing a clearance form - was inconsistent with abscondment, while allegations of sleeping on duty were unsupported by evidence. Applying sections 41, 43 and 45 of the Employment Act, the court held the termination unfair. On terminal dues, the court relied on section 26 of the Employment Act and section 48 of the Labour Institutions Act to hold that terms below statutory minimum wages are illegal and unenforceable, and, on the respondent's own admissions, awarded notice, leave, house allowance, underpayments and public holiday pay as prayed. It refused October salary (already paid) and off days (four off days monthly were given), and reduced compensation from 12 to 2 months' salary (Kshs.22,428.80). Total award: Kshs.338,212.00, plus costs to the claimant. Judgment delivered 26th May 2016 by Maureen Onyango, J.

Key legal issues

#
01

Whether the claimant's employment was unfairly terminated

Holding

The claimant was unfairly dismissed; the employer neither proved a valid reason nor complied with sections 41 and 43 of the Employment Act

Reasoning

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.

p. 2
02

Whether employment terms below statutory minimum are enforceable

Holding

No; statutory minimum terms under the Employment Act and wages orders apply regardless of agreement

Reasoning

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.

p. 4
03

Quantum of compensation for unfair termination

Holding

12 months' salary sought was excessive; 2 months' salary (Kshs. 22,428.80) awarded

Reasoning

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.

p. 4

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. 1.Respondent to pay notice Kshs. 11,214.40
  2. 2.Respondent to pay leave Kshs. 15,410.34
  3. 3.Respondent to pay house allowances Kshs. 55,320.07
  4. 4.Respondent to pay underpayments Kshs. 206,549.28
  5. 5.Respondent to pay public holidays Kshs. 27,289.11
  6. 6.Respondent to pay compensation Kshs. 22,428.80 (2 months' salary)
  7. 7.Respondent to pay claimant's costs

Authorities

#

Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44(4)(a) and 44(3),(4)
  • Employment Actsection 45
  • Employment Actsection 26
  • Labour Institutions Actsection 48
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.