Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause Number 1725 of 2014· [2018] KEELRC 2263 (KLR)

Maina Ng’ang’a v Pema Holdings Limited [2018] KEELRC 2263 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
23 February 2018
1,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court awarded two security guards nine months' salary each because their employer could not prove it followed fair procedures before firing them.

What this practically means

#

Executive summary

#
Two claimants, Maina Ng'ang'a and Jacob Mungai, sued Pema Holdings Limited alleging unfair termination of their employment as security guards. The 1st claimant said he was employed in March 2005 at Kshs 150 per day and on 13th July was told by his supervisor to see the manager, who directed him to leave the premises until called back; he was never recalled or paid his benefits, which he characterised as constructive dismissal. The 2nd claimant said he was employed from 1st April 2008 at Kshs 195 per day and his services were terminated with immediate effect on 14th July 2011 without explanation. They also claimed underpayment below the minimum wage, untaken leave, gratuity, overtime, off days and housing allowance. The respondent denied continuous employment, contended the claimants were casuals who absconded duty from 15th July 2011, and relied on section 44(4) of the Employment Act, asserting wages complied with the Regulation of Wages (Agricultural Industry) Order. The court held that unfair termination must be proved by the claimant while the employer bears the onus of justifying termination; as the respondent produced no evidence of notice, disciplinary process, or reasonable steps to contact employees who allegedly absconded, the terminations were unfair. The underpayment, leave, gratuity, overtime and off days claims were disallowed as the respondent's documents reasonably disproved them. The court awarded each claimant one month's salary in lieu of notice and eight months' salary as compensation for unfair termination, computed on monthly wages of Kshs 4,500 and Kshs 5,850 respectively, with costs of the suit to the claimants.

Key legal issues

#
01

Whether the claimants were unfairly terminated

Holding

Yes - the services of the claimants were unfairly terminated as the respondent produced no evidence of notice, disciplinary process or steps to contact employees alleged to have absconded

Reasoning

The claimants denied being issued termination notices or being taken through a disciplinary process. The respondent alleged absconding but produced no evidence that it took reasonable steps to contact the employees or warn them of termination for absence. In the absence of any evidence to the contrary, the claimants' position stood uncontroverted, and the court found the terminations unfair.

p. 2
02

Whether the claimants were entitled to underpayment, leave, gratuity, overtime and off days claims

Holding

No - these heads of claim were disallowed because the documents exhibited by the respondent reasonably proved they lacked merit

Reasoning

The respondent's witness explained the wage payment records and the applicable Regulation of Wages (Agricultural Industry) Order. The court accepted that the exhibited documents reasonably disproved the claims for underpayment, untaken leave, gratuity, overtime and off days, notwithstanding the claimants' oral evidence.

p. 2

Legal principles established

#
  • In a claim for unfair termination, the onus of proving that unfair termination took place is on the claimant while the onus of proving the reasons for termination is on the employer
  • Where termination is said to be on account of absconding duties, the employer must show it took reasonable steps to contact the employee and warn that absence would lead to termination

Court orders

#
  1. 1.Judgment entered in favour of the claimants
  2. 2.One month's salary in lieu of notice to each claimant
  3. 3.Eight months' salary as compensation for unfair termination of service to each claimant
  4. 4.Monthly wages computed as Kshs 4,500 for Maina Ng'ang'a and Kshs 5,850 for Jacob Mungai
  5. 5.Claimants to have the costs of the suit

Authorities

#

Legislation

  • Employment ActSection 44(4)
  • Regulation of Wages (Agricultural Industry) Order
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Maina Ng’ang’a v Pema Holdings Limited [2018] KEELRC 2263 (KLR)", Case Analysis (2018). Cause Number 1725 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2263/eng@2018-02-23

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