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ELRCPartially AllowedNot stated in judgment (statement of claim filed 12.10.2015)· [2019] KEELRC 1274 (KLR)

Darius Mbela Wambua v Bob Morgan Services Limited [2019] KEELRC 1274 (KLR)

Employment and Labour Relations Court
5 July 2019
BOByram Ongaya
900 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a suspended employee later convicted of an offence is not entitled to pay for the suspension period, though he must still receive a certificate of service.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent as a security guard, filed a statement of claim in person on 12.10.2015 seeking a declaration that his termination was unfair, payment of Kshs.508,231.20 (salary during suspension, NSSF and NHIF dues, and compensation for unfair termination), a certificate of service under section 51 of the Employment Act, 2007, and costs. The respondent, through Wainaina Ireri & Company Advocates, contended that the certificate was available for collection, that payment during suspension was not automatic, that NSSF and NHIF were statutory matters, and that the claimant terminated his own employment. The background was the theft of a motorcycle from premises the claimant guarded on 11.10.2012, for which he was charged at Makueni; he was acquitted on the stealing count but convicted on the alternative count of failing to prevent a felony on 09.01.2014. The respondent lifted his suspension on condition that he forfeit salary and benefits for the suspension period; he declined re-engagement and the respondent accepted that refusal. Following Grace Gacheru Muriithi v Kenya Literature Bureau (2012) eKLR, the court held that entitlement to pay during suspension depends on the outcome of the disciplinary process, and since the claimant was not exculpated and rejected the terms of re-engagement, the termination was not unfair and the suspension-related prayers failed. However, the claimant was entitled to a certificate of service, to be delivered within seven days, with each party bearing its own costs.

Key legal issues

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01

Fairness of termination and entitlement to suspension-period pay

Holding

Termination was not unfair; the claimant, having been convicted and having declined re-engagement conditions, is not entitled to pay for the suspension period

Reasoning

The claimant was convicted on the alternative count of failing to prevent a felony arising from a theft at premises he guarded. The respondent lifted the suspension on condition that he forfeit salary and benefits for that period. He declined re-engagement on those terms. Following Grace Gacheru Muriithi v Kenya Literature Bureau, an employee not exculpated cannot claim a legitimate expectation to suspension-period pay, and the terms of lifting the suspension were proportionate to his conviction. The prayers based on suspension and unfair termination therefore fail.

p. 1
02

Certificate of service

Holding

The claimant is entitled to a certificate of service under section 51 of the Employment Act, 2007

Reasoning

Despite the failure of the main claims, the court found that the statutory entitlement to a certificate of service stands. The respondent had pleaded that the certificate was available for collection, but the court directed delivery within seven days and, balancing the mixed outcome, ordered each party to bear its own costs.

p. 2

Legal principles established

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  • Whether an employee is paid during suspension or interdiction depends on the outcome of the disciplinary proceedings

Court orders

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  1. 1.Each party to bear own costs of the suit
  2. 2.The respondent to deliver the claimant's certificate of service in 7 days

Authorities

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Legislation

  • Employment Actsection 51
  • Penal Codesection 275
  • Penal Codesection 392
  • Constitution of KenyaArticle 41(1)

Cases cited (1)

  • Grace Gacheru Muriithi –Versus- Kenya Literature Bureau
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; claim under sections 51 and compensation for unfair termination)

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, "Darius Mbela Wambua v Bob Morgan Services Limited [2019] KEELRC 1274 (KLR)", Case Analysis (2019). Not stated in judgment (statement of claim filed 12.10.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1274/eng@2019-07-05

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