David Nyangoto Osiemo v Radar Limited [2019] KEELRC 626 (KLR)
The bottom line
#A Kenyan court ruled a security guard's dismissal was unfair because he was never given a hearing, awarding him unpaid allowances, leave pay, and compensation.
What this practically means
#Executive summary
#Key legal issues
#Validity of reason for termination
The Respondent had a valid reason under Sections 43 and 44 of the Employment Act to terminate the Claimant's contract for habitual absenteeism
The Claimant did not deny being absent on various dates. He attributed absences to his child's illness and attending burials, but produced no leave of the employer, no treatment records, and no request for leave. The clinic receipt did not correspond to the dates of alleged absence. Warning letters and a refresher course had not changed his conduct, so the Court was satisfied the absences were without lawful cause.
Fairness of termination procedure
Termination was procedurally unfair because the Claimant was not given a disciplinary hearing in accordance with Section 41 of the Employment Act
There was no evidence the Claimant was invited in writing or otherwise to a disciplinary hearing, no written charges were supplied, and the Respondent could not produce minutes of any hearing. The Claimant's right to be heard under Section 41 was not taken away by the prior warning letters. Although the reason was valid, the flawed procedure rendered the termination unfair to that extent.
Nature of the employment relationship
The Claimant worked continuously from January 2013 to September 2016 on both oral and formal contracts
Only one contract covering July to September 2015 was exhibited; no contracts existed for the earlier period, yet the Claimant worked continuously thereafter until September 2016. The Respondent's own witness treated him as an employee in September 2016. The Court inferred a mix of oral and formal contracts over the full period, with a last salary of Kshs. 11,800 monthly.
House allowance entitlement
The Claimant was awarded house allowance in arrears of 45 months at 15% of basic salary, totalling Kshs. 79,650
The Respondent's witness confirmed the Respondent had a policy of not paying house allowance, which violates Section 31 of the Employment Act. The Court computed the arrears at 15% of the basic salary of Kshs. 11,800 over 45 months of service, awarding Kshs. 79,650.
Compensation for unfair termination
The Claimant was awarded compensation equivalent of 3 months' salary at Kshs. 35,400
Compensation was merited on account of the procedural flaws. In exercising discretion, the Court took into account the roughly 3 years of service, the warnings on record, the Claimant's blemished record of habitual absence without leave, and his lack of potential for long-term service, arriving at the equivalent of 3 months' gross salary.
Return of academic certificates
The Respondent was ordered to release the Claimant's academic certificates immediately
The Respondent conceded retaining the certificates, which the Court held was a serious violation of the Claimant's property rights and right to fair labour practices, restricting his ability to seek other employment in the labour market.
Legal principles established
#- An employer's policy of not paying house allowance violates Section 31 of the Employment Act
- Warning letters do not displace an employee's right to be heard before termination under Section 41 of the Employment Act
- An employer has no justification for withholding a former employee's academic certificates, which violates property rights and fair labour practices
- Minimum wages vary over time and claims for underpayment must be anchored on the Wage Orders applicable to specific service periods
Court orders
#- 1.Declaration that termination was unfair on account of flawed procedure
- 2.Respondent to pay Claimant arrears of house allowance at Kshs. 79,650
- 3.Respondent to pay annual leave pay at Kshs. 28,592
- 4.Respondent to pay compensation equivalent of 3 months' salary at Kshs. 35,400
- 5.Respondent to release the Claimant's academic certificates forthwith
- 6.No order on the costs
- 7.Interest at 14% per annum from the date of Judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act 2007); specific enabling provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lee Construction Limited v Moseti (Employment and Labour Relations Appeal E017 of 2023) [2024] KEELRC 2538 (KLR)[2024] KEELRC 2538 (KLR)18 Oct 2024
Cite this brief
#Cite this brief
Caselaw, "David Nyangoto Osiemo v Radar Limited [2019] KEELRC 626 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/626/eng@2019-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.