Njoroge Njuguna v Time Trek Security Services Ltd [2018] KEELRC 2045 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#House allowance
Claim not proved; no evidence was adduced despite the pleading.
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.
Leave allowance
Not payable under the Employment Act and not proved contractually; annual leave was taken per the Respondent's records.
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.
Overtime
Overtime was worked and payable in principle, but the amount could not be precisely computed on the material presented, so no award was made.
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.
Termination or desertion
The Claimant did not abscond; his employment was unfairly terminated without notice under section 35(1) or a hearing under section 41.
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.
Remedies
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.
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.
Legal principles established
#- 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
#- 1.Pay in lieu of notice of Kshs 7,000/-
- 2.Compensation of Kshs 84,000/-
- 3.Total award of Kshs 91,000/- to the Claimant
- 4.Claimant to have costs of the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.