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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim lodged 21 February 2014)· [2018] KEELRC 2045 (KLR)

Njoroge Njuguna v Time Trek Security Services Ltd [2018] KEELRC 2045 (KLR)

Employment and Labour Relations Court
11 May 2018
1,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Njoroge Njuguna claimed against Time Trek Security Services Ltd for unfair termination of his employment on 11 November 2013 and breach of contract covering house allowance, leave allowance, overtime, earned wages and service pay. The Respondent denied breach and asserted that the Claimant absconded. The Court framed three questions: breach of contract, whether the Claimant absconded or was unfairly dismissed, and appropriate remedies. On house allowance the Claimant gave no evidence and the claim failed. Leave allowance is unknown to the Employment Act, no contractual entitlement was shown, and leave records proved leave was taken. On overtime, the Court noted the Regulation of Wages (Protective Security Services) Order, 1998 prescribes 52 hours over six days for guards; the Respondent's Manager admitted 12-hour shifts with all-inclusive wages. Although the Court accepted overtime was worked, it held the amounts were incapable of precise determination on the material presented and declined to award them, stressing the employer's duty to keep records. On the separation, the Court rejected the desertion defence because the supervisor and recipient of the report were never disclosed and no attempt was made to contact the Claimant to show cause. It believed the Claimant's account that he was told to leave and found the termination unfair for want of notice under section 35(1) and a hearing under section 41. The Court awarded pay in lieu of notice of Kshs 7,000/- and maximum compensation of Kshs 84,000/-, totalling Kshs 91,000/-, with costs to the Claimant. Service pay was refused on account of his NSSF registration. Judgment was delivered in Nairobi on 11 May 2018 by Radido Stephen J.

Key legal issues

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01

House allowance

Holding

Claim not proved; no evidence was adduced despite the pleading.

Reasoning

Section 31 of the Employment Act obliges an employer to provide housing or pay a rent allowance in lieu. However, the burden of proof remained on the Claimant, who pleaded non-payment but never testified on this head, leaving no evidential basis upon which the Court could find a breach.

p. 1
02

Leave allowance

Holding

Not payable under the Employment Act and not proved contractually; annual leave was taken per the Respondent's records.

Reasoning

The Act provides for leave on full pay, not a leave allowance. No contractual entitlement was produced. The Respondent filed leave records demonstrating the Claimant went on leave, so the claim failed to the required standard of proof.

p. 1
03

Overtime

Holding

Overtime was worked and payable in principle, but the amount could not be precisely computed on the material presented, so no award was made.

Reasoning

The applicable prescription is in the Regulation of Wages (Protective Security Services) Order, 1998 fixing 52 hours over 6 days, beyond which overtime accrues. The Respondent's Manager admitted the 12-hour shifts and that wages were all inclusive. Since guards cannot keep attendance records and the employer must keep records, the Court accepted overtime was worked but declined to award an unquantifiable sum.

p. 2
04

Termination or desertion

Holding

The Claimant did not abscond; his employment was unfairly terminated without notice under section 35(1) or a hearing under section 41.

Reasoning

The Respondent's desertion case was unsupported: the supervisor and the person reported to were never disclosed, and no attempt was made to contact the Claimant to show cause, despite the security firm having his contact details. The Court preferred the Claimant's account that the Manager told him his services were no longer required, finding both notice and hearing requirements breached.

p. 2
05

Remedies

Holding

One month's pay in lieu of notice (Kshs 7,000/-) and maximum compensation of Kshs 84,000/- (12 months) awarded; service pay refused due to NSSF contribution.

Reasoning

The Claimant served about 11 years. Because the Court declined to award overtime on evidential grounds, it considered maximum compensation appropriate and fair. Pay in lieu of notice follows sections 35 and 36. Service pay is barred by NSSF registration, with unremitted deductions recoverable by the Fund under the NSSF Act.

p. 3

Legal principles established

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  • An employer must follow the procedural requirements of section 41(1) & (2) of the Employment Act before summarily dismissing an employee for absconding, including attempting to reach the employee to show cause.
  • Overtime claims, being in the nature of special damages, need not be precisely computed by an employee because the employer bears the statutory duty to keep employment records and produce them in legal proceedings.
  • A registered NSSF contributor is not entitled to service pay under the Employment Act.

Court orders

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  1. 1.Pay in lieu of notice of Kshs 7,000/-
  2. 2.Compensation of Kshs 84,000/-
  3. 3.Total award of Kshs 91,000/- to the Claimant
  4. 4.Claimant to have costs of the cause

Authorities

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Legislation

  • Employment Actsection 31
  • Employment Actsection 41(1) & (2)
  • Employment Actsection 35(1)
  • Employment Actsections 35 and 36
  • NSSF Actnot specified
  • Regulation of Wages (Protective Security Services) Order1998 (52 hours over 6 days)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a Memorandum of Claim for unfair termination and breach of contract 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, "Njoroge Njuguna v Time Trek Security Services Ltd [2018] KEELRC 2045 (KLR)", Case Analysis (2018). Not stated in judgment (Memorandum of Claim lodged 21 February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2045/eng@2018-05-11

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