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ELRCAllowedCause No. 461 of 2014· [2018] KEELRC 1114 (KLR)

Guyo Huka v Mawara Holding Limited [2018] KEELRC 1114 (KLR)

Employment and Labour Relations Court
27 September 2018
HWHellen S. Wasilwa
865 words in judgment
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The bottom line

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A Kenyan court awarded a security guard Kshs.85,500 because his employer fired him without a hearing, even though he had no appointment letter.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Security Guard from 24.6.2007 at a salary of Kshs.5,700, was dismissed on 7.11.2011 after an attempted theft at the premises he guarded. He told the court he raised an alarm and drove the thugs away, but management accused him of colluding with the police; police interrogation found nothing against him. He alleged he worked 6 pm to 6 am with only one day off, no leave, and worked public holidays, and sought Kshs.128,440 in terminal dues. The Respondent was served with the Memorandum of Claim and summons but neither entered appearance nor filed a response, and failed to attend the hearing, so the claim proceeded exparte. The court found the employment relationship proved by the NHIF Member Data Statement and related appendix, noting the Respondent should have issued an appointment letter over four years of service. It held that dismissing the Claimant without any disciplinary hearing or opportunity to be heard contravened Section 41 of the Employment Act 2007, and, there being no evidence to controvert the claim, found the dismissal unfair and unjustified under Section 45(2). The court awarded one month's salary in lieu of notice (Kshs.5,700), service pay for four years (Kshs.11,400), leave for four years (Kshs.22,800) and eight months' salary as damages for unlawful dismissal (Kshs.45,600), totalling Kshs.85,500, plus costs and interest at court rates from the date of judgment.

Key legal issues

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01

Employment relationship

Holding

The employment relationship was proved by the NHIF Member Data Summary despite the absence of an appointment letter.

Reasoning

The Claimant produced an NHIF Member Data Statement showing he was employed by the Respondent, and another appendix showing he was among the Respondent's employees. The Respondent did not appear or rebut this evidence. The court held the Respondent should have issued an appointment letter given over four years of service, but its absence did not defeat the claim.

p. 1
02

Unfair termination

Holding

The dismissal was unfair and unjustified as the Respondent gave no hearing and adduced no evidence.

Reasoning

The Claimant was dismissed following an attempted theft at the premises, allegedly on suspicion of collusion, without any disciplinary hearing or chance to defend himself. This contravened Section 41 of the Employment Act 2007. With no controverting evidence from the Respondent, the court found the dismissal unfair under Section 45(2), which requires the employer to prove valid reason, fair reason and fair procedure.

p. 2

Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, explain the reasons to the employee and hear their representations (Section 41, Employment Act 2007).
  • A termination is unfair where the employer fails to prove a valid and fair reason and a fair procedure (Section 45(2), Employment Act 2007).

Court orders

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  1. 1.One month salary in lieu of notice of Kshs.5,700
  2. 2.Service pay for 4 years of Kshs.11,400
  3. 3.Leave for 4 years of Kshs.22,800
  4. 4.Eight months' salary as damages for unlawful dismissal of Kshs.45,600
  5. 5.Total award of Kshs.85,500
  6. 6.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
  • Employment ActSection 45(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (unfair termination and terminal dues 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, "Guyo Huka v Mawara Holding Limited [2018] KEELRC 1114 (KLR)", Case Analysis (2018). Cause No. 461 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1114/eng@2018-09-27

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