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ELRCPartially AllowedCause No. 1933 of 2014· [2018] KEELRC 1331 (KLR)

Frederick K. Wabwire v Japa Protection Systems Ltd [2018] KEELRC 1331 (KLR)

Industrial Court of Kenya
25 July 2018
782 words in judgment
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The bottom line

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A Kenyan court ruled a security guard was unfairly fired after a theft accusation he was later acquitted of, because his employer never defended the case.

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 January 2009 on a verbal contract at Kshs.6,500 per month, alleged that in April 2014 a motor vehicle was stolen at his work station. The respondent accused him of the theft; he was charged in a criminal case in which he was ultimately acquitted, but was summarily dismissed without being given an opportunity to answer the allegations. By a Memorandum of Claim dated 30th October 2014, he sought a declaration of unlawful dismissal, April salary, one month's notice pay, leave days, house allowance, gratuity at 20% for 64 months, 64 months' compensation for unlawful loss of employment, withheld salary per the minimum wages order, interest, a certificate of service and costs. The respondent entered appearance on 16th December 2014 but filed no defence despite service. The claimant proposed determination by written submissions on 18th April 2018. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Relying on section 44(1) of the Employment Act, 2007, and noting the absence of a defence, the court found the termination unlawful. It held the claimant entitled to relief but awarded only one month's notice pay (Kshs.6,500) and six months' compensation (Kshs.39,000), totalling Kshs.45,500, with costs borne by the respondent and assessed at Kshs.30,000. The other heads claimed were not awarded, and no reasons were given for their omission.

Key legal issues

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01

Whether the termination of the claimant was wrongful, unfair and unlawful

Holding

The termination was unlawful; the respondent, having filed no defence despite service, failed to demonstrate lawful termination

Reasoning

The claimant relied on section 44(1) of the Employment Act, 2007 defining summary dismissal, and submitted that the respondent had not demonstrated a lawful basis for termination. He alleged he was summarily dismissed after being accused of theft, though acquitted in the criminal charge, and was never given an opportunity to answer the allegations. The respondent filed a memorandum of appearance but no defence or participation. The court held that in the absence of a defence, unlawful termination was made out.

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02

Whether the claimant is entitled to the relief sought

Holding

Entitled to relief, but the court limited the award to one month's notice pay and six months' compensation for unlawful termination, totalling Kshs.45,500.00

Reasoning

Having found unlawful termination, the court held the claimant entitled to relief. However, of the numerous heads claimed (April salary, leave, house allowance, gratuity at 20%, 64 months' compensation, deductions, interest and certificate of service), the court only ordered notice pay of Kshs.6,500.00 and compensation of six months' salary at Kshs.39,000.00, and assessed costs at Kshs.30,000.00. The judgment gives no reasons for omitting the other heads.

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03

Who bears the costs of the claim

Holding

The respondent bears the costs of the claim, assessed at Kshs.30,000.00

Reasoning

The court framed costs as the third issue and, having found for the claimant against an unresponsive respondent, ordered the respondent to bear the costs, going further to fix/assess them at Kshs.30,000.00 rather than leaving them to taxation.

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Legal principles established

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  • Where an employer fails to enter a defence despite service, the uncontroverted claim of unlawful termination will be upheld
  • An employee who proves unlawful termination becomes entitled to the relief sought

Court orders

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  1. 1.One (1) month's salary in lieu of notice of Kshs.6,500.00
  2. 2.Six (6) months' salary as compensation for unlawful termination of employment, Kshs.6,500.00 x 6 = Kshs.39,000.00
  3. 3.Total award of Kshs.45,500.00
  4. 4.The costs of the claim to be borne by the respondent
  5. 5.The costs of the claim assessed at Kshs.30,000.00

Authorities

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Legislation

  • Employment Act, 2007section 44(1)
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Industrial Court of Kenya); claim brought by Memorandum of Claim under the Employment Act, 2007

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, "Frederick K. Wabwire v Japa Protection Systems Ltd [2018] KEELRC 1331 (KLR)", Case Analysis (2018). Cause No. 1933 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1331/eng@2018-07-25

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