Frederick K. Wabwire v Japa Protection Systems Ltd [2018] KEELRC 1331 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination of the claimant was wrongful, unfair and unlawful
The termination was unlawful; the respondent, having filed no defence despite service, failed to demonstrate lawful termination
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.
Whether the claimant is entitled to the relief sought
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
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.
Who bears the costs of the claim
The respondent bears the costs of the claim, assessed at Kshs.30,000.00
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.
Legal principles established
#- 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
#- 1.One (1) month's salary in lieu of notice of Kshs.6,500.00
- 2.Six (6) months' salary as compensation for unlawful termination of employment, Kshs.6,500.00 x 6 = Kshs.39,000.00
- 3.Total award of Kshs.45,500.00
- 4.The costs of the claim to be borne by the respondent
- 5.The costs of the claim assessed at Kshs.30,000.00
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.