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ELRCAllowedELRC NO. 1315 OF 2015· [2019] KEELRC 1239 (KLR)

Herman Ilangarwa Shidakwa v Armati Security Solutions Limited [2019] KEELRC 1239 (KLR)

Employment and Labour Relations Court
1 July 2019
HWHellen S. Wasilwa
532 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan security guard fired without reasons or a hearing won over Kshs. 160,000 because his employer never defended the case.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent on 15/6/2014 at a monthly salary of Kshs. 6,500, claimed unfair and oppressive termination following his dismissal on 29th April 2015 without any reason and without a hearing. He sought terminal dues, compensation for unfair termination, house allowance at Kshs. 5,000 per month, and payment of Kshs. 1,500 in salary arrears for March 2015. He further pleaded that his pay contravened the Kenya Gazette Notice of 1/5/2013 prescribing Kshs. 10,911.70 per month for security officers within Nairobi, and that he was never issued an appointment letter. Though served with the Memorandum of Claim, the Respondent failed to enter appearance or file a defence, and the matter proceeded undefended before Hon. Justice Hellen S. Wasilwa. The court found the Claimant had proved the employment relationship through bank statements showing salary payments from the Respondent, and that the claim was wholly uncontroverted. It held the termination unfair and unjust and that the Claimant was underpaid as pleaded. The court awarded: one month's salary in lieu of notice (Kshs. 10,911.70); underpayment of Kshs. 4,411.70 monthly for 10 months (Kshs. 44,117); unpaid house allowance at 15% of the prescribed wage for 10 months (Kshs. 16,368); unpaid March 2015 salary (Kshs. 1,500); and 8 months' salary as compensation for unlawful termination (Kshs. 87,294), totalling Kshs. 160,190.3. The Respondent was also ordered to pay the costs of the suit plus interest at court rates from the date of judgment. Judgment dated and delivered on 1st July 2019.

Key legal issues

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01

Unfair termination

Holding

Termination was unfair and unjust as the Claimant was not given a reason or a hearing

Reasoning

The Respondent did not enter appearance or file a defence despite service, so the Claim went undefended. The Claimant testified he was terminated without any reason and was not given any right to be heard. His evidence, including bank statements showing salary payments from the Respondent, went uncontroverted, so the court accepted his account and found the termination unfair.

p. 1
02

Underpayment against the statutory minimum wage

Holding

The Claimant was underpaid relative to the Kenya Gazette Notice wage of Kshs. 10,911.70 for security officers within Nairobi

Reasoning

The Claimant pleaded employment on a salary of Kshs. 6,500 per month from 15/6/2014, whereas the Gazette Notice of 1/5/2013 prescribed Kshs. 10,911.70 per month for security officers within Nairobi. The Respondent did not contest this. The court awarded the shortfall of Kshs. 4,411.70 per month for the 10 months worked.

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03

House allowance

Holding

The Claimant was awarded unpaid house allowance computed at 15% of the prescribed monthly wage for the 10-month employment period

Reasoning

The Claimant averred he was never paid house allowance during his employment contrary to the law and sought Kshs. 5,000 per month. With no defence filed, the claim stood uncontroverted. The court applied the standard 15% computation, awarding 15% of 10,911.70 (Kshs. 1,636.8) per month for 10 months, totalling Kshs. 16,368.

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04

Compensation for unfair termination

Holding

The court awarded 8 months' salary as compensation for the unfair termination

Reasoning

Having found the termination unfair and unjust, the court exercised its discretion to award compensation equivalent to 8 months' salary computed on the prescribed monthly wage of Kshs. 10,911.70, totalling Kshs. 87,294. The employment relationship was proved through bank statements showing salary payments from the Respondent.

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Legal principles established

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  • An undefended claim, if uncontroverted and proved, establishes the employment relationship and grounds a finding of unfair termination
  • Failure to issue an appointment letter contrary to the law does not negate an employment relationship proved by other evidence

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs. 10,911.70
  2. 2.Underpayment of salary of Kshs. 44,117 for 10 months
  3. 3.Unpaid house allowance for 10 months of Kshs. 16,368
  4. 4.Unpaid salary for March 2015 of Kshs. 1,500
  5. 5.8 months' salary as compensation for unlawful termination of Kshs. 87,294
  6. 6.Total award of Kshs. 160,190.3
  7. 7.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Kenya Gazette NoticeGazette Notice of 1/5/2013 (minimum wage for security officers within Nairobi)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment and Labour Relations Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Herman Ilangarwa Shidakwa v Armati Security Solutions Limited [2019] KEELRC 1239 (KLR)", Case Analysis (2019). ELRC NO. 1315 OF 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1239/eng@2019-07-01

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