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ELRCDismissedCause No. 174 of 2018 (lead file, consolidated with Causes Nos. 175, 176, 177 and 178 of 2018)· [2019] KEELRC 1014 (KLR)

Patrick Waweru Mang’ere & 4 others v Gilly Security and Investigations Services [2019] KEELRC 1014 (KLR)

Employment and Labour Relations Court
29 July 2019
NMNzioki wa Makau
2,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Five Kenyan security guards lost their dismissal case because they joined the new company instead of reporting for redeployment—and couldn't prove their paperwork claims.

What this practically means

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Executive summary

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Five guards employed by the Respondent security company sued for unlawful termination without notice in five consolidated causes, the lead file being Cause No. 174 of 2018 (Patrick Waweru Mang’ere). Each claimed a declaration that his termination was unlawful and terminal dues for unpaid public holidays, underpayment, house allowance and severance pay, plus damages. The Respondent denied termination, asserting the Claimants absconded and were absorbed by Brinks Security which took over its contract; it contended the claims were time barred under Section 90 of the Employment Act, that NSSF/NHIF were remitted, that salaries were inclusive of house allowance and above the minimum wage, and that extra days worked were compensated in payslips. All five Claimants testified; the Respondent called its HR Manager, Japheth Kaundo. The court found that no dismissal occurred: the Respondent's contract was terminated and the Claimants, instead of reporting to head office for redeployment, joined the take-over company, thereby mitigating their losses and abandoning the employer. It further held that none of the Claimants proved non-remittance of NHIF, and only John Chege Mang’ere proved non-remittance of NSSF, limited to Kshs. 400/- for April 2016. The suits were dismissed save for a conditional order that the Respondent avail proof of the Kshs. 400/- NSSF payment within seven days failing which it must pay Mang’ere Kshs. 10,000/-. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimants were unlawfully terminated

Holding

No termination occurred; the Claimants abandoned the employer and were absorbed by Brinks Security

Reasoning

The Respondent's contract ended and employees were asked to report to head office for redeployment; none showed up and all were found to have been absorbed by Brinks Security. The court held there was no dismissal, so no compensation for unlawful termination lay.

p. 2
02

Non-remittance of NSSF and NHIF dues

Holding

Only John Chege Mang’ere proved non-remittance, limited to Kshs. 400/- for April 2016

Reasoning

All Claimants except John Chege Mang’ere did not avail NSSF statements, and none attached NHIF statements, disentitling them to relief. Mang’ere proved default only for April 2016, hence the limited conditional order of Kshs. 400/- or Kshs. 10,000/- if proof not availed.

p. 2
03

Claims for holidays, leave, house allowance and underpayment

Holding

Not proved; contradicted by the Respondent's payslip evidence and minimum wage comparison

Reasoning

The Respondent's witness testified that salary was inclusive of house allowance, above the applicable minimum wage of Kshs. 5,844/-, and that extra days worked were compensated in payslips showing 31 or 32 days. The Claimants did not specify the holidays worked.

p. 2

Legal principles established

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  • A claimant who alleges non-remittance of statutory deductions must avail statements to prove the default
  • An employee who opts to join the take-over company instead of reporting for redeployment is deemed to have mitigated losses and cannot claim recompense for dismissal

Court orders

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  1. 1.The suits are dismissed
  2. 2.Proof of payment of Kshs. 400/- on account of John Chege Mang’ere's NSSF dues for April 2016 to be availed within 7 days, failing which the Respondent to pay him Kshs. 10,000/-
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 45
  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 50

Cases cited (3)

  • John Mugalla Mwaduma v Braeburn Schools Ltd T/A Braeburn International School Mombasa
    [2015] eKLR
  • Joseph Njoroge Kiama v Summer Ltd
    [2014] eKLR
  • John Mulinge Mutuku v Kartasi Industries Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (not expressly cited in the judgment)

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, "Patrick Waweru Mang’ere & 4 others v Gilly Security and Investigations Services [2019] KEELRC 1014 (KLR)", Case Analysis (2019). Cause No. 174 of 2018 (lead file, consolidated with Causes Nos. 175, 176, 177 and 178 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1014/eng@2019-07-29

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