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 No. 891 of 2013· [2018] KEELRC 2507 (KLR)

Vincent Amusala Machisu v Kenya Kazi Services Limited [2018] KEELRC 2507 (KLR)

Employment and Labour Relations Court
19 January 2018
2,218 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
The claimant, a security guard employed from 5th November 2004, sued for compensation for unlawful and unfair termination and terminal benefits after his employment was summarily terminated on 17th May 2013 following a dispute over hospital attendance at Kenyatta National Hospital. The respondent alleged the claimant produced fake hospital documents, violently retrieved them from his supervisor, and absented himself from duty, and that a disciplinary hearing on 21st May 2013 led to lawful termination, later recording him as a deserter. The court found on a balance of probabilities that the claimant was genuinely ill and treated at KNH on the material dates; RW1 admitted no evidence proved the documents were fake, and no evidence was adduced at the alleged disciplinary hearing. The disciplinary form and the desertion letter were found to be afterthoughts manufactured for trial. Termination without notice to show cause or a fair hearing contravened sections 41, 43 and 45 of the Employment Act, 2007, and the claimant discharged his burden under section 47(5). Considering his over eight years of unblemished service and the denial of an honourable retirement one year short of the retirement age of 55, the court awarded maximum compensation of 12 months' salary (Kshs.130,944), gratuity, one month's notice pay, and salary for May 2013, with interest, the respondent to pay costs. Judgment was authored by Mathews N. Nduma, J and delivered in Nairobi by Maureen Onyango, J.

Key legal issues

#
01

Whether termination was for a valid reason and fair procedure

Holding

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.

Reasoning

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.

p. 4
02

Quantum of compensation for unfair termination

Holding

Maximum compensation of 12 months' salary awarded under section 49(1)(c) as read with section 49(4).

Reasoning

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.

p. 4
03

Entitlement to gratuity/service pay, notice pay and May 2013 salary

Holding

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.

Reasoning

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.

p. 4

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. 1.Equivalent of 12 months salary being compensation for unlawful and unfair termination of employment in the sum of Kshs.130,944.
  2. 2.Gratuity in the sum of Kshs.78,456.50.
  3. 3.Notice pay Kshs.10,912.
  4. 4.Arrear Salary for May 2013, Kshs.10,912.
  5. 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. 6.Respondent to pay costs of the suit.

Authorities

#

Legislation

  • Employment Act, 2007section 47(5)
  • Employment Act, 2007sections 41, 43 and 45
  • Employment Act, 2007section 49(1)(c) as read with section 49(4)
  • Employment Act, 2007section 35
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.