Juma Iha Benson v Protective Custody Ltd [2019] KEELRC 1338 (KLR)
The bottom line
#A Mombasa court ruled a security guard was unfairly locked out and underpaid for years, awarding him over Kshs. 400,000.
What this practically means
#Executive summary
#Key legal issues
#Fairness of termination
Termination was unfair; the Claimant was locked out and replaced without notice, reason, charges or hearing
The Respondent alleged desertion but called no witnesses and produced no evidence of desertion. The Claimant's account of being locked out and replaced after requesting financial assistance was unchallenged. Section 41 requires notice and a hearing; Section 43 requires a valid reason proved; Section 45 renders termination without these unfair. All three statutory requirements failed.
Underpayment of salary
The Claimant's salary of Kshs. 3,000 and later Kshs. 4,000 violated the minimum wage under various Wage Orders; underpayment awarded at Kshs. 232,739 as computed and exhibited
The Claimant exhibited the applicable Legal Notices/Wage Orders and computed the shortfall at Kshs. 232,739. The Respondent's assertion that gross salary was Kshs. 11,000 was unsupported by any documentary evidence. The rates paid denied the Claimant a living wage and the Court accepted the pleaded computation.
Desertion and the Counter-Claim
Desertion not proved; Counter-Claim for Kshs. 64,000 rejected for want of evidence
The Respondent produced no witness and no evidence that the Claimant deserted or that it paid him Kshs. 64,000 in salary and allowances over three months warranting a refund. Allegations in pleadings unsupported by evidence cannot found a counterclaim.
Legal principles established
#- Termination without notice, valid reason or a hearing is unfair under Sections 41, 43 and 45 of the Employment Act
- Compensation for unfair termination must be pegged to the legal minimum wage, not the unlawfully low rate actually paid
- The employer bears the evidential burden of disproving leave claims by producing annual leave records
- A claimant must adduce evidence of the excess hours worked to justify overtime
Court orders
#- 1.Declaration that termination was unfair
- 2.The Respondent shall pay to the Claimant underpayment of salary at Kshs. 232,739
- 3.The Respondent shall pay 1 month salary in lieu of notice at Kshs. 10,911
- 4.The Respondent shall pay equivalent of 12 months' salary in compensation for unfair termination at Kshs. 130,932
- 5.The Respondent shall pay annual leave pay at Kshs. 32,000 - total Kshs. 406,582
- 6.Costs to the Claimant
- 7.Interest at 14% per annum from the date of Judgment till payment in full
- 8.The Counter-Claim is rejected
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma Iha Benson v Protective Custody Ltd [2019] KEELRC 1338 (KLR)", Case Analysis (2019). Cause No 675 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1338/eng@2019-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.