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ELRCPartially AllowedCause No. 1544 of 2012· [2018] KEELRC 926 (KLR)

Bernard Juma Owili v Lavington Security Limited [2018] KEELRC 926 (KLR)

Employment and Labour Relations Court of Kenya
3 October 2018
HWHellen S. Wasilwa
731 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 wrongfully dismissed won Kshs 130,900 because his employer claimed he absconded but could not prove it actually tried to find him.

What this practically means

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Executive summary

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The Claimant, employed as a Guard by the Respondent in November 2008 at Kshs 8,500 per month, sued in person for wrongful and unfair termination and unpaid terminal benefits after his services ended in February 2012. He testified that after deployment at Kenya Methodist University he was moved to the Respondent's office, worked unpaid, and was told by his supervisor to go home pending a call back that never came. He claimed notice pay, salary arrears, house allowance, overtime, annual leave and compensation for unfair termination totalling Kshs 427,550. The Respondent admitted the employment but alleged underperformance and that the Claimant absconded for a month, reappearing on 4 April 2012, and that all dues including house allowance were paid within the consolidated salary. The court found the Respondent's abscondment narrative unconvincing: it never wrote to the Claimant despite having his known address under the contract, and never replied to a demand letter from Kituo Cha Sheria of 20 May 2012. Holding there was no valid reason and no due process under Section 41 of the Employment Act, the court declared the dismissal unfair and unlawful, awarding Kshs 130,900 comprising notice pay, February 2012 salary, house allowance at 15% for 36 months within the limitation period, and eight months' salary as damages. The remaining claims were held unproved. The Respondent was ordered to pay costs plus interest at court rates from the date of judgment.

Key legal issues

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01

Fairness of termination

Holding

Dismissal was unfair and unlawful

Reasoning

The Respondent alleged the Claimant absconded, but never wrote to him seeking his whereabouts despite having a contract with his known address, and ignored the demand letter from Kituo Cha Sheria. The court found the Respondent's conduct inconsistent with the abscondment claim and consistent with an unjustified dismissal, contrary to Section 41 of the Employment Act.

p. 2
02

Quantum of terminal dues

Holding

Award of notice pay, one month salary, house allowance for 36 months and 8 months' compensation; remaining claims unproved

Reasoning

The court awarded the pleaded notice pay and February 2012 salary, computed unpaid house allowance at 15% of salary for 36 months within the limitation period, and exercised discretion under Section 49 to award 8 months' salary as compensation. Overtime, leave and the balance were dismissed as unproved.

p. 2

Legal principles established

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  • An employer alleging abscondment must demonstrate that it sought the employee's whereabouts, and termination without valid reason or due process under Section 41 of the Employment Act is unfair and unlawful.

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs 8,500
  2. 2.Salary for February 2012 of Kshs 8,500
  3. 3.House allowance of 15% of 8,500 x 36 months = Kshs 45,900
  4. 4.8 months' salary as damages for unlawful termination = Kshs 68,000
  5. 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance unfair termination claim)

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, "Bernard Juma Owili v Lavington Security Limited [2018] KEELRC 926 (KLR)", Case Analysis (2018). Cause No. 1544 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/926/eng@2018-10-03

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