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ELRCPartially AllowedCause No. 128 of 2018· [2019] KEELRC 95 (KLR)

Kiplangat Arap Koech v Dalsit Kondola [2019] KEELRC 95 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
17 December 2019
724 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security guard's dismissal without reasons or notice was unfair, awarding him notice pay, unpaid wages and costs.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent at Njoro, Nakuru County from 22 February 2017 to 11 May 2017 (2 months and 17 days), claimed notice pay, overtime, public holiday pay, May 2017 salary, underpayment, compensation for unfair termination and costs. The respondent was served with summons and a notice to attend but neither appeared nor filed a defence, so the claim was heard under Rule 15 of the ELRC (Procedure) Rules, 2016 and remained unchallenged. The court held that the dismissal without notice, hearing or reasons was unfair under sections 43, 45 and 49 of the Employment Act, 2007. On quantum, the court found no underpayment: the Ksh.250 daily wage paid totalled Ksh.7,500 monthly, exceeding the applicable Njoro minimum wage of Ksh.6,720.60, and the excess covered overtime; the Wage Orders relied on by the claimant applied to Nakuru only from 1 May 2017. The public holiday claim failed because the days worked were not stated. The court awarded notice pay of Ksh.7,930.40 and unpaid May 2017 wages of Ksh.3,844.50, holding these dues adequately compensated the claimant, and declined the overtime, public holiday, underpayment and compensation heads. Judgment was entered for the claimant with costs of the suit, delivered at Nakuru on 17 December 2019 by M. Mbaru, J.

Key legal issues

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01

Unfair termination

Holding

Termination without notice, hearing or reasons was unfair under sections 43, 45 and 49 of the Employment Act

Reasoning

The claimant worked for 2 months and 17 days and was dismissed by the manager on 11 May 2017 without reasons. Section 43 obliges the employer to prove valid reasons for dismissal; where none exist, section 45 renders the termination unfair and section 49 compensation follows. The respondent did not appear or challenge the evidence, leaving the claims unchallenged.

p. 1
02

Underpayment and overtime

Holding

No underpayment or overtime was proved; the wage paid exceeded the applicable minimum wage and covered overtime

Reasoning

The court compared the Ksh.250 daily wage paid against the Wage Order applicable to Njoro for the period, finding the monthly total of Ksh.7,500 exceeded the minimum wage of Ksh.6,720.60 by over Ksh.780 monthly, which covered overtime at the allowed hourly rate of Ksh.54.70. The Wage Orders cited by the claimant applied to Nakuru from 1 May 2017, not to the claimant's period.

p. 2
03

Unpaid May 2017 wages

Holding

The claimant was entitled to unpaid wages for May 2017 computed at Ksh.3,844.50

Reasoning

For work done in May 2017 which was not paid for, the court applied the daily rate of Ksh.250.00 against the entitled daily wage of Ksh.349.50, arriving at Ksh.3,844.50, which was awarded together with notice pay computed at the last wage rate of Ksh.7,930.40.

p. 2

Legal principles established

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  • An employer must give reason(s) for dismissal or termination of employment; absent reasons, notice or terminal dues, termination is unfair and compensation is due
  • Where a respondent fails to appear or file a defence, the claimant's evidence stands unchallenged and the court may hear the claim under Rule 15

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for payment of notice pay of Ksh.7,930.40
  2. 2.Payment of unpaid wages for May 2017 of Ksh.3,844.50
  3. 3.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 49
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 15
  • Wage OrdersMinimum wage rates for Njoro/Nakuru, 2015-2017
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 15 (uncontested claim hearing)

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, "Kiplangat Arap Koech v Dalsit Kondola [2019] KEELRC 95 (KLR)", Case Analysis (2019). Cause No. 128 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/95/eng@2019-12-17

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