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ELRCPartially AllowedIndustrial Cause No. 101 of 2014· [2016] KEELRC 1833 (KLR)

Kenya National Private Security Workers Union v New Simba Security [2016] KEELRC 1833 (KLR)

Industrial Court of Kenya
26 February 2016
592 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan security guard won Kshs.326,782 in terminal dues because his employer never filed a defence or attended the hearing.

What this practically means

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Executive summary

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The Kenya National Private Security Workers Union, a trade union registered for the private security industry, filed a claim on behalf of Meshack Sasa Ka Mandila, a grievant alleged to be its member, against New Simba Security. The grievant was employed as a security guard on 15th November 2012 (the judgment also records wages claims running from May 2011) at a monthly salary of Shs.2,100. He gave three months' notice of retirement on 16th October 2012 and, upon retirement after attaining retirement age, was not paid his terminal dues. By a Memorandum of Claim filed on 29th May 2014, the Claimant sought retirement benefits, arrears of wages, house allowance, overtime and gratuity, tabulated at a grand total of Kshs.326,782, computed from the statutory minimum wage Legal Notices. The grievant testified and reiterated the memorandum of claim. The Respondent entered appearance through Kulecho, Musomba & Company Advocates but filed no defence and did not attend the hearing, despite being properly served as evidenced by affidavits of service. The court inferred that the Respondent had no defence, examined the tabulation of terminal benefits and confirmed it was based on the Regulation of Wages and Conditions of Employment (General) Order and the Protective Security Services Order for the relevant years. On 26th February 2016 Lady Justice Maureen Onyango awarded the Claimant Kshs.326,782 as prayed, with no orders as to costs.

Key legal issues

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01

Entitlement to terminal dues upon retirement

Holding

The Grievant, having retired after attaining retirement age and having given three months' notice, was entitled to payment of his terminal benefits as tabulated in the Memorandum of Claim.

Reasoning

The Grievant testified and reiterated the memorandum of claim. The Respondent was served with the claim and hearing notice but filed no defence and did not attend the hearing. The court therefore treated the claim as uncontroverted. On examining the tabulation, the court confirmed it was anchored on the statutory minimum wage Legal Notices for the relevant years and awarded the full claimed amount.

p. 3
02

Effect of non-attendance and failure to file defence despite service

Holding

Proper service coupled with non-response permits the court to proceed on the basis that the Respondent has no defence to the claim.

Reasoning

The Respondent entered appearance through advocates but filed no defence and did not attend the hearing despite affidavits of service on the file. The court drew the inference that there was no defence, and proceeded to determine the claim on the Claimant's uncontroverted evidence and tabulations.

p. 2

Legal principles established

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  • Where a respondent is properly served with a claim and hearing notice but fails to file a defence or attend the hearing, the court may assume there is no defence to the claim
  • Terminal benefits should be computed on the basis of the statutory minimum wage orders applicable for the relevant years

Court orders

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  1. 1.Award of Kshs.326,782 to the Claimant as prayed

Authorities

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Legislation

  • Regulation of Wages and Conditions of Employment (General) Ordernot specified (statutory minimum wages for relevant years)
  • Regulation of Wages and Conditions of Employment (Protective Security Services) Ordernot specified (statutory minimum wages for relevant years)
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim for terminal dues (Industrial Court, Industrial Cause)

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, "Kenya National Private Security Workers Union v New Simba Security [2016] KEELRC 1833 (KLR)", Case Analysis (2016). Industrial Cause No. 101 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1833/eng@2016-02-26

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