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ELRCPartially AllowedCause No. 1599 of 2014· [2016] KEELRC 1232 (KLR)

Paul Mutuma Marimba v Security Group Kenya Limited [2016] KEELRC 1232 (KLR)

Employment and Labour Relations Court of Kenya
10 March 2016
MBMbaru
4,198 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed technician overtime and leave dues but refused unfair termination compensation because he had no medical certificate for his absence.

What this practically means

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Executive summary

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The claimant, employed as a Technician on 8th July 2013 at a monthly salary of Kshs.40,000.00, was suspended on 11th February 2014 for failing to create and send journeys to the control room and terminated on 5th March 2014 following a disciplinary hearing. He claimed unpaid salary, notice pay, leave, overtime, damages for unfair termination, a certificate of service, and an order for investigations under section 51(3) of the Employment Act. The respondent maintained the termination was lawful after due process and that some dues were withheld pending return of company property. The court found the disciplinary hearing procedurally flawed - no minutes were produced, so any doubt went to the employee - but held that on substance the claimant's unexplained absence on grounds of sickness, without a medical certificate, was a matter subject to summary dismissal. Notice pay and compensation were therefore refused. The court also endorsed authority holding that limiting employee rights by length of service under section 45(3) is discriminatory under Article 27 of the Constitution. On remedies, the Protective Security Services Order 1998 was held inapplicable to a technician, but overtime at 1.5 rate was awarded on the basis of 12-hour shifts, with the rest hour included in computations. Judgment was entered for the claimant for overtime (Kshs.30,000), rest days (Kshs.90,000), public holidays (Kshs.15,000), annual leave (Kshs.16,000), pay for February (Kshs.14,670) and March (Kshs.6,667), a certificate of service to issue unconditionally, and 50% costs of the suit. Orders were read in open court at Nairobi on 10th March 2016.

Key legal issues

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01

Procedural fairness of the disciplinary hearing

Holding

The hearing had procedural flaws: no disciplinary minutes were produced and the court could not ascertain the claimant's protections under section 41, so the doubt went to the employee; nevertheless the claimant was accorded a hearing under section 41(2)

Reasoning

The court held that participation in disciplinary proceedings upon notification of allegations is not unlawful, but the employer must ensure the employee knows his right to have a colleague of his choice present. With no minutes of the 21st February hearing on record, the claimant's version prevailed, yet on substance the absence without explanation warranted summary dismissal.

p. 4
02

Substantive fairness - absence on grounds of sickness

Holding

Absence on grounds of illness without producing a medical certificate constitutes absence without due cause subject to summary dismissal; the burden was on the claimant

Reasoning

Section 30 of the Employment Act permits lawful absence for sickness only if the employer is informed within a reasonable period and a certificate of illness from a medical practitioner is produced. The claimant admitted being sick but produced no certificate, so his absence without due cause justified summary dismissal.

p. 5
03

Overtime computation and applicable wage order

Holding

The Protective Security Services Order did not apply as the claimant was a technician, but overtime at 1.5 rate was due based on 12-hour shifts, with the rest hour included

Reasoning

The court found the respondent was not shown to be in the business covered by the 1998 Order, but the respondent admitted overtime was due at the 1.5 rate. The claimant's shifts of 7am-6pm and 6pm-7am were 12 full hours each, and the employer's records being absent, four overtime hours per day were assumed.

p. 5
04

Terminal dues - salary, leave, public holidays

Holding

Unpaid half salary for the suspension period, pay for 5 days in March, 12 earned leave days, and 5 public holidays were all payable

Reasoning

The court computed dues on gross pay: half salary for the suspension period admitted at Kshs.14,670.00, full pay for 5 days worked in March 2015, 1¾ leave days per month for 7 months giving 12 days, and 60 hours for 5 public holidays at the overtime rate.

p. 6

Legal principles established

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  • An employee must produce a medical certificate to justify absence on grounds of sickness; unexplained absence without due cause is a matter subject to summary dismissal
  • Where the employer fails to produce records of employment such as disciplinary minutes, the doubt is resolved in favour of the employee
  • All employees deserve equal protection of the law under Article 27 of the Constitution; limiting rights by length of service is discriminatory
  • Where the employment contract is silent, overtime is payable at 1.5 of the hourly rate and the lunch/rest hour cannot be excluded from computation

Court orders

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  1. 1.Overtime pay of Kshs.30,000.00
  2. 2.Rest days' pay of Kshs.90,000.00
  3. 3.Public holidays' pay of Kshs.15,000.00
  4. 4.Annual leave pay of Kshs.16,000.00
  5. 5.Pay for 5 days worked in February 2015 of Kshs.14,670.00
  6. 6.Pay for 5 days worked in March 2015 of Kshs.6,667.00
  7. 7.Certificate of service to issue unconditionally
  8. 8.50% costs of the suit to the claimant

Authorities

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Legislation

  • Employment Actsection 4 (Court Rules Rule 4 on issue in dispute)
  • Employment Actsections 12 and 40
  • Employment Actsection 41
  • Employment Actsection 41(2)
  • Employment Actsection 42(1)
  • Employment Actsections 45 and 45(3)
  • Employment Actsection 47
  • Employment Actsection 51(3)
  • Employment Actsection 27
  • Employment Actsection 28 and 28(1)(b)
  • Employment Actsection 30
  • Employment Actsection 74
  • Regulations of Wages (Protective Security Services) Order1998
  • Regulation of Wages (Protective Services) OrderRegulation 23
  • Constitution of KenyaArticle 27
  • Court Rules (ELRC Procedure Rules)Rule 4

Cases cited (3)

  • Mercy Kanini Lilian versus Ali Ishmael Mwangi
    [2013] eKLR
  • Tom Luusa Munyasi & Another versus the Governor Makueni County & Others
    Cause No. 103 of 2014
  • Samuel Momanyi versus The Hon. Attorney General and SDV Transami Kenya Ltd
    HCCC No. 341 of 2011
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act and the Court Rules (Cause filed under the ELRC Procedure Rules)

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, "Paul Mutuma Marimba v Security Group Kenya Limited [2016] KEELRC 1232 (KLR)", Case Analysis (2016). Cause No. 1599 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1232/eng@2016-03-10

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