Vincent Amusala Machisu v Kenya Kazi Services Limited [2018] KEELRC 2507 (KLR)
The bottom line
#A Kenyan court awarded a security guard maximum compensation after his employer fired him without notice, a hearing, or proof he faked sick notes.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was for a valid reason and fair procedure
Termination was unlawful and unfair; the respondent failed to prove valid reason or fair procedure under sections 41, 43 and 45 of the Employment Act, 2007.
The claimant's hospital documents proved on a balance of probabilities that he was ill and treated at KNH on the material dates. RW1 admitted no evidence showed the documents were fake and that no evidence was adduced at the alleged disciplinary hearing. The disciplinary form and desertion letter were found to be afterthoughts manufactured for trial. The claimant discharged his burden under section 47(5) upon the respondent's failure to demonstrate justifiable cause.
Quantum of compensation for unfair termination
Maximum compensation of 12 months' salary awarded under section 49(1)(c) as read with section 49(4).
The court considered the claimant's over eight years of good service, lack of adverse record, and that only one year remained to retirement. Denial of the chance to retire honorably at 55 was an affront to his human dignity, making this an appropriate case for the maximum award equivalent to 12 months' salary at Kshs.10,912 per month.
Entitlement to gratuity/service pay, notice pay and May 2013 salary
Service pay of Kshs.78,466.50 per the wage order, one month notice pay of Kshs.10,912 under section 35, and May 2013 salary of Kshs.10,912 awarded.
The wage order entitles security guards to gratuity at 18 days salary per completed year of service. Summary unlawful termination entitles the claimant to one month's notice pay. RW1 confirmed the pay month ran from the 15th to the 16th, proving non-payment of May 2013 salary. General damages and other heads were not merited and were dismissed.
Legal principles established
#- An employee who produces hospital documentation establishes illness on a balance of probabilities where the employer leads no evidence that the documents were fake.
- Termination without notice to show cause or a disciplinary hearing contravenes sections 41, 43 and 45 of the Employment Act and is unlawful and unfair.
- Security guards are entitled under the relevant wage order to gratuity calculated at 18 days salary for every completed year of service.
Court orders
#- 1.Equivalent of 12 months salary being compensation for unlawful and unfair termination of employment in the sum of Kshs.130,944.
- 2.Gratuity in the sum of Kshs.78,456.50.
- 3.Notice pay Kshs.10,912.
- 4.Arrear Salary for May 2013, Kshs.10,912.
- 5.The compensation award is payable with interest at court rates from date of judgement until payment in full whereas the rest of the awards are payable with interest from date of filing suit till payment in full.
- 6.Respondent to pay costs of the suit.
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (Establishment of the Employment and Labour Relations Court); Employment Act, 2007 sections 35, 41, 43, 45, 47(5), 49
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vincent Amusala Machisu v Kenya Kazi Services Limited [2018] KEELRC 2507 (KLR)", Case Analysis (2018). Cause No. 891 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2507/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.