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ELRCPartially AllowedCause No 36 of 2015· [2019] KEELRC 2466 (KLR)

Halake Guyo v Victory Construction Company Ltd & another [2019] KEELRC 2466 (KLR)

Employment and Labour Relations Court
31 January 2019
2,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee jailed over 14 days can be lawfully dismissed, awarding only unpaid salary and gratuity of Kshs.39,594.

What this practically means

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Executive summary

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The claimant, a watchman employed by the 1st Respondent from 2008, was arrested and charged on 6.9.2013 after a compressor machine was stolen from the employer's site camp while he was on night duty. He remained in remand custody for 8 months, being unable to meet bond terms, until he was acquitted. He claimed Kshs.965,183.70 comprising notice pay, accumulated leave, rest days, overtime, public holidays, gratuity, leave travelling allowance, house allowance and damages for wrongful dismissal, and further sought malicious prosecution and false imprisonment damages, a certificate of service, costs and interest. The 1st Respondent maintained that the claimant deserted employment after his arrest and that prosecution was the DPP's decision; the 2nd Respondent asserted he acted within his statutory mandate under the National Police Service Act. The court held that under section 44(4)(f) of the Employment Act, the claimant's failure to secure liberty within 14 days of arrest for a cognizable offence punishable by imprisonment justified summary dismissal; the contract was therefore not wrongfully terminated. The torts of malicious prosecution and false imprisonment were not proved, the burden lying on the claimant. Most heads of claim failed for lack of evidence; only gratuity for 6 years at 15 days' pay per year (Kshs.29,695.50) and outstanding last month's salary (Kshs.9,898.50) were awarded, totaling Kshs.39,594.00, payable subject to statutory deductions, with costs and interest from filing. Judgment entered for the claimant against the 1st Respondent only.

Key legal issues

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01

Whether the claimant's employment was wrongfully terminated

Holding

The contract was not wrongfully terminated; the employer was entitled to treat it as constructively terminated after the claimant failed to secure liberty within 14 days of arrest under section 44(4)(f)

Reasoning

The claimant was arrested and charged over theft from the employer's site and remained in lawful custody for 8 months unable to meet bond terms. Under section 44(4)(f) of the Employment Act, failure to secure release within 14 days is a justifiable ground for summary dismissal. The court found no evidence that the claimant reported back to work after acquittal or was denied access, and blamed the claimant for the termination.

p. 4
02

Whether the claimant proved malicious prosecution and false imprisonment

Holding

Not proved; the claimant adduced no evidence of the ingredients of the torts

Reasoning

The burden lay on the claimant. All his evidence related to the employment claim. The 1st Respondent only reported a robbery to the police and the decision to prosecute lay with the DPP; the 2nd Respondent acted within the mandate under the National Police Service Act. No malice or lack of reasonable cause was demonstrated on a balance of probability.

p. 4
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Which reliefs the claimant is entitled to

Holding

Only gratuity for 6 years at 15 days' pay per year and the outstanding last month's salary were awarded; all other heads dismissed for lack of evidence or proof

Reasoning

Having found no wrongful termination, notice pay and compensation failed. House allowance failed because housing was provided. Leave claims failed as leave was cashed, supported by payment sheets. Rest day, overtime and public holiday claims failed for want of particulars and evidence, and the court found 6 rather than 8 years of service. Gratuity was granted pursuant to the Regulation of the Private Protective Securities Order.

p. 5

Legal principles established

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  • An employee arrested for a cognizable offence punishable by imprisonment who is not released on bail or bond or otherwise set at liberty within fourteen days may be lawfully dismissed summarily under section 44(4)(f) of the Employment Act
  • The burden of proving unfair termination rests on the employee who alleges it, under section 47(5) of the Employment Act
  • The burden of proving the torts of malicious prosecution and false imprisonment lies with the claimant alleging them

Court orders

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  1. 1.Judgment entered for the claimant against the 1st Respondent for gratuity of Kshs.29,695.50
  2. 2.Judgment entered for the claimant against the 1st Respondent for outstanding salary of Kshs.9,898.50 (total Kshs.39,594.00)
  3. 3.The decreed sum to be paid subject to statutory deductions
  4. 4.The claimant to have costs of the suit plus interest from the date of filing suit

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 44(4)(f)
  • National Police Service Actsection 24
  • Regulation of the Private Protective Securities Ordernot specified
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act (court's first-instance jurisdiction under Article 162(2) of the Constitution implied by forum)

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, "Halake Guyo v Victory Construction Company Ltd & another [2019] KEELRC 2466 (KLR)", Case Analysis (2019). Cause No 36 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2466/eng@2019-01-31

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