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. 377 of 2013· [2018] KEELRC 887 (KLR)

Kenya National Private Security Workers Union v Lavington Security Limited [2018] KEELRC 887 (KLR)

Employment and Labour Relations Court
15 October 2018
675 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan security guard won Kshs. 288,636 in unpaid wages, house allowance and leave, and the employer couldn't block the union's claim for lacking a recognition agreement.

What this practically means

#

Executive summary

#
The Claimant union filed a Memorandum of Claim dated 21/3/2013 on behalf of its grievant, Mr. Aftin Deron Hassan, a Security Guard employed by the Respondent on 16/11/1999 at a salary of Kshs. 3,000, who resigned on 30th March 2011 citing low pay below the minimum wage. The Claimant sought gratuity/service pay, pending leave, underpayment of wages and house allowance. The Respondent contended that it had no recognition agreement with the union, rendering the claim untenable, and raised a preliminary objection dismissed by Justice L. Ndolo on 25/6/2013; it also contended that the grievant was duly paid his terminal dues. Justice Wasilwa agreed with the earlier ruling and held that the absence of a recognition agreement does not render the union unfit to defend its members, the right to join a union being protected under Article 41 of the Constitution. On the merits, the court found the grievant was underpaid against the minimum wage from 2003 to 2011, totalling Kshs. 131,556, since the Respondent offered no contrary evidence. The court awarded house allowance at 15% of basic salary amounting to Kshs. 144,144 and leave for 3 years of Kshs. 12,936, making a total award of Kshs. 288,636. The Respondent was ordered to pay costs plus interest at court rates from the date of judgment. The claim partially succeeded.

Key legal issues

#
01

Whether lack of a recognition agreement bars a union from claiming on behalf of a member

Holding

It does not bar the claim; the right to join a union is protected under Article 41 of the Constitution

Reasoning

The Respondent's preliminary objection on the absence of a recognition agreement had already been dismissed by Justice L. Ndolo in a ruling dated 25/6/2013. The court agreed with that position and reiterated that the constitutional right to join a union under Article 41 cannot be taken away by an employer on the basis that no recognition agreement exists between the employer and the union.

p. 1
02

Whether the grievant was underpaid relative to the minimum wage

Holding

The grievant was underpaid from 2003 to 2011; total underpayment assessed at Kshs. 131,556

Reasoning

The grievant exhibited a payslip from July 2008 showing a basic salary of Kshs. 6,160 with no indication of improvement. The Claimant tabulated wages paid against the statutory minimum wage from 2003 to 2011. The Respondent offered no evidence to show that it paid the grievant differently, so the court accepted the Claimant's computation of underpayment.

p. 1
03

Entitlement to house allowance and leave

Holding

House allowance awarded at 15% of basic salary (Kshs. 144,144) and leave for 3 years (Kshs. 12,936)

Reasoning

The court found that during the employment period the grievant was not paid house allowance and computed it at the standard 15% of basic salary over 156 months. Leave was awarded for 3 years at 21 days per year computed on the basic salary of Kshs. 6,160, producing a total award of Kshs. 288,636.

p. 2

Legal principles established

#
  • The absence of a recognition agreement does not render a trade union unfit to sue on behalf of its members, as the right to join a union is constitutionally protected

Court orders

#
  1. 1.Respondent to pay underpayment of wages of Kshs. 131,556
  2. 2.Respondent to pay house allowance computed at 15% of basic salary, Kshs. 144,144
  3. 3.Respondent to pay leave for 3 years, Kshs. 12,936
  4. 4.Total award of Kshs. 288,636 to the grievant
  5. 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 41
Jurisdiction invoked
Article 41 of the Constitution (employment and labour relations jurisdiction of the Employment and Labour Relations Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Private Security Workers Union v Lavington Security Limited [2018] KEELRC 887 (KLR)", Case Analysis (2018). Cause No. 377 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/887/eng@2018-10-15

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