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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 225 of 2017· [2019] KEELRC 246 (KLR)

Henry Chome Ngala v Vickers Security Services Limited [2019] KEELRC 246 (KLR)

Employment and Labour Relations Court
28 November 2019
1,002 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 sacking unlawful because the employer never gave him a hearing or notice before claiming he deserted duty.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent in April 2012 at a monthly consolidated salary of Kshs. 8,500, sued for compensation for unlawful termination plus terminal benefits after his employment ended on 5th June 2016 when the Respondent's service contract with Kassam Hauliers Ltd was terminated. The Claimant alleged verbal termination by the Branch Manager; the Respondent contended that the Claimant was offered re-deployment to Mombasa Island, declined it, and deserted duty. The court framed two issues: whether the termination was unlawful and whether the remedies sought were payable. On the first issue, the court rejected the desertion defence: no written re-deployment was produced despite employment being evidenced by a letter of appointment, and the Respondent's own witness statement revealed longstanding complaints about the Claimant's performance which were never confronted with him as required under Section 41 of the Employment Act. Citing Stanley Omwoyo v Board of Management Nakuru YMCA Secondary School and Dickson Matingi v Db Schenker Limited, the court held the Respondent ought to have put the Claimant on notice before terminating on account of desertion. The court found the termination unlawful and unfair. On remedies, the court awarded six months' salary in compensation (Kshs. 51,000) and one month's notice pay (Kshs. 8,500), totalling Kshs. 59,500 with interest at court rates from judgment. Claims for house allowance (salary being consolidated), unlawful deductions, underpayment and service pay were dismissed for want of proof or basis. The Claimant received the costs of the case. Judgment delivered at Mombasa on 28th November 2019.

Key legal issues

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01

Whether the termination of the Claimant's employment was unlawful and unfair

Holding

The Respondent unlawfully and unfairly terminated the Claimant's employment; the defence of desertion was not available on the evidence

Reasoning

The Respondent claimed the Claimant declined re-deployment and deserted duty, but no written re-deployment was produced despite employment being evidenced by a letter of appointment. The Respondent's own witness statement showed longstanding performance concerns which were never confronted with the Claimant as required under Section 41 of the Employment Act. Nor was the Claimant put on notice that termination on account of desertion was contemplated.

p. 2
02

What remedies flow from the unlawful termination

Holding

Six months' salary in compensation and one month's notice pay awarded; house allowance, unlawful deductions, underpayment and service pay claims dismissed

Reasoning

Compensation was assessed at six months' salary considering the Claimant's length of service and the Respondent's conduct. Notice pay followed from the unlawful termination. The house allowance claim failed because the salary was consolidated; the deduction, underpayment and service pay claims failed for want of proof or basis.

p. 2

Legal principles established

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  • Where an employer alleges desertion, it must reach out to the employee and put him on notice that termination on that account is being considered before terminating employment
  • Performance and misconduct issues must be confronted with the employee as required under Section 41 of the Employment Act before termination

Court orders

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  1. 1.Six (6) months' salary in compensation of Kshs. 51,000
  2. 2.One (1) month's salary in lieu of notice of Kshs. 8,500
  3. 3.Total judgment of Kshs. 59,500 with interest at court rates from the date of judgment until payment in full
  4. 4.Claimant awarded the costs of the case
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment dispute)

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, "Henry Chome Ngala v Vickers Security Services Limited [2019] KEELRC 246 (KLR)", Case Analysis (2019). Cause No. 225 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/246/eng@2019-11-28

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