Kiptarus Kipkoskei Torus v Ol-Suswa Farm Ltd [2016] KEELRC 1705 (KLR)
The bottom line
#A Kenyan court ruled a security guard's dismissal unfair, awarding him Kshs 34,650, but refused severance pay because he was never declared redundant.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was unfair
The dismissal was unfair; the facts as pleaded and the Claimant's testimony were unchallenged and uncontroverted
The Respondent filed no Response to the Claim and did not attend the hearing. The Claimant testified on oath that he was employed as a security guard on 4 May 2012 and terminated on 9 July 2013 without reasons. With the facts and testimony unchallenged, the Court accepted them and found the dismissal unfair.
Severance pay
Severance pay refused because no redundancy was shown
Severance pay is tied to redundancy under the Employment Act. The Claimant gave no evidence that his termination was on account of redundancy, so he was not entitled to severance pay as a matter of law.
Compensation under section 49(1)(c) of the Employment Act, 2007
Awarded the equivalent of 2 months wages instead of the 12 months sought
Compensation is discretionary. The Court considered that the Claimant served for about 1 year and, weighing that length of service, awarded 2 months wages as compensation rather than the 12 months claimed.
Legal principles established
#- A claimant is not entitled to severance pay as a matter of law unless declared redundant
- Compensation under section 49(1)(c) of the Employment Act, 2007 is a discretionary remedy to be assessed with regard to length of service
Court orders
#- 1.The Court finds and holds that the dismissal of the Claimant was unfair
- 2.Award to the Claimant as pleaded: wages for June 2013 Kshs 5,500; wages for July 2013 Kshs 1,467; 1 month pay in lieu of notice Kshs 5,500; 21 days annual leave Kshs 4,217; 32 rest days Kshs 5,133; 10 public holidays Kshs 1,833; 2 months wages as compensation Kshs 11,500; TOTAL Kshs 34,650/-
- 3.The Respondent should issue a certificate of service within 7 days
- 4.Claimant to have costs of Kshs. 7,000/-
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over an issue in dispute of unfair termination (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiptarus Kipkoskei Torus v Ol-Suswa Farm Ltd [2016] KEELRC 1705 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1705/eng@2016-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.