Stephen Ombaki Momanyi v Bedrock Holdings Limited [2019] KEELRC 369 (KLR)

Employment and Labour Relations Court of Kenya

24 October 2019

MMM. Mbaru

1,391 words in judgment

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The bottom line

A Kenyan court ruled a guard's redundancy notice was valid but awarded him wage underpayments, rest day pay and service pay after his employer failed to defend the case.

What this practically means

Executive summary

The claimant sued Bedrock Holdings Limited alleging he was employed as a night guard on an oral contract from 19 March 2015 at Ksh.5,200 monthly, and that on 19 September 2016 he was directed to train a replacement, Samson Koech, and hand over duties, his employment ending on 20 September 2016 following an allegedly unfair redundancy that did not comply with section 40 of the Employment Act. He sought unpaid September 2016 wages, 12 months' compensation, notice pay, underpayments, overtime, off days, public holidays pay, annual leave, service/severance pay and a certificate of service. The respondent denied employment, alleging the claimant worked for Skypak Security Services, but filed its defence late, under protest, called no witness and produced no work records. The County Labour Officer's report did not assist. The court found the Skypak period (January–February 2015) fell outside the pleaded employment, leaving the claim against the respondent unchallenged. Applying Africa Nazarene University and the Court of Appeal's decision in Heritage Insurance, the court held that awareness of the impending work stoppage, including the training and handover, amounted to sufficient notice of redundancy, so notice pay and 12 months' compensation were refused. The claimant was awarded underpayments of Ksh.96,866, rest days' pay of Ksh.24,170.70, payment for 20 days worked in September 2016 (Ksh.7,500), service pay of Ksh.5,665 and a certificate of service. Public holidays and overtime claims failed for want of particulars or as already accounted for. Each party was ordered to bear its own costs.

Key legal issues

Identity of employer

Holding

The employment with Skypack Security Services Limited fell outside the pleaded period; the claim against the respondent for the period from 19 March 2015 stood unchallenged

Reasoning

The NSSF statement showed Skypack employment for January–February 2015, outside the pleaded employment period with the respondent from 19 March 2015. The respondent filed no evidence and did not attend, so the claim for the pleaded period was not materially challenged and the court accepted the claimant's testimony on employment with the respondent.

p. 2

Fairness of the redundancy

Holding

The redundancy was sufficient as to notice and reason; notice pay and compensation were not due

Reasoning

The claimant was trained and directed to hand over to a replacement, Samson Koech, from July to September 2016. Following the Court of Appeal in Heritage Insurance, awareness of the work stoppage sufficed as notification, so the termination had a reason and notice pay and 12 months' compensation were refused.

p. 2

Underpayment and rest days

Holding

The claimant was underpaid against the applicable Wage Orders and entitled to rest days' pay computed on basic wage

Reasoning

The applicable wage in March 2015 was Ksh.10,116 and from May 2015 Ksh.11,330, against payment of Ksh.5,200, yielding total underpayments of Ksh.96,866. A security guard is entitled to a rest day per week under the Wage Guidelines; 64 rest days were computed at Ksh.24,170.70.

p. 2

Legal principles established

Where an employee is made aware, whether in writing or orally, that there will be work stoppage, such notification is sufficient for redundancy purposes
A respondent who files no defence, calls no evidence and produces no work records leaves the court with a one-sided claim

Court orders

1.Payment for 20 days worked in September, 2016 at Ksh.7,500.00
2.Underpayments awarded at Ksh.96,866.00
3.Rest days' pay at Ksh.24,170.70
4.Service pay at Ksh.5,665.00
5.A certificate of service shall issue
6.Each party to bear own costs

Authorities

Legislation

Employment Act, 2007section 40
Employment Act, 2007section 35
Wage Orders (Nakuru County security guard wages)applicable Wage Orders and Wage Guidelines

Cases cited (2)

Africa Nazarene University versus David Mutevu & 103 others
[2017] eKLR
Heritage Insurance Company Limited versus Christopher Onyango & 23 others
[2018] eKLR

Jurisdiction invoked: Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction); Employment Act, 2007

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Stephen Ombaki Momanyi v Bedrock Holdings Limited [2019] KEELRC 369 (KLR)", Case Analysis (2019). Cause No. 458 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/369/eng@2019-10-24

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