Mwendo Katiku v David Koine t/a City Watch Guards Service [2020] KEELRC 4 (KLR)
The bottom line
#A Kenyan security guard won over Ksh.330,000 after his employer failed to justify his dismissal or pay wages set by law.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the claimant's employment was unfair contrary to section 45 of the Employment Act, 2007
- 2.Whether the claimant was underpaid contrary to the applicable Wage Orders (Protective Security Services Order)
- 3.Whether the claimant is entitled to overtime pay for hours worked beyond the regulated maximum
- 4.Whether the claimant is entitled to annual leave pay, notice pay, compensation and severance pay
Key legal issues
#Unfair termination of employment
Termination was unfair; the respondent failed to justify the grounds and procedure of termination
The claimant's evidence that he reported on duty on 1st November 2012 and found he had been replaced was not materially challenged. The respondent's defence was a mere denial that it had employed the claimant, with no supporting material. The respondent therefore failed to discharge its statutory burdens under sections 43, 45 and 41 of the Employment Act to prove valid and fair reasons and to hear the employee before termination.
Underpayment of wages
Underpayment established per the Protective Security Wage Orders; Ksh.152,425.22 awarded
Wages for the security industry are regulated under Wage Orders. The claimant's tabulation of due wages against the Ksh.4,000 actually paid was found to be in tandem with the Protective Security Orders cited and attached to the memorandum of claim, so the full claimed underpayment was awarded.
Overtime pay
Overtime claim awarded in full at Ksh.151,446.18
The claimant worked 12-hour night shifts from 6PM to 6AM, six days a week, totalling 72 hours against the 52 hours permitted under the Regulation of Wages Protective Security Services Order, 1998. The unpaid 20 hours per week, tabulated at 1.5 rate, complied with the Wage Orders and was awarded in full.
Annual leave pay
Leave pay awarded at Ksh.6,507 for a balance of 22 days, not the 50 days claimed
Section 28 of the Employment Act provides 21 days' annual leave absent a written contract or collective agreement. Over the 32-month employment the claimant accrued entitlement of 52 days but had enjoyed 30 days, leaving 22 days payable, computed on the last basic wage of Ksh.8,873 per month.
Notice pay and compensation
One month's notice pay and one month's compensation awarded, each at Ksh.10,204.87
Notice pay is due under section 35 of the Employment Act where notice to terminate is not given. Compensation follows from the finding of unfair termination, with one month's pay found appropriate under section 49 rather than the 12 months claimed.
Severance pay
Severance pay refused as there was no redundancy
Severance pay attaches to redundancy, not unfair termination. Since the claimant's case was unfair termination, already redressed through compensation and other awards, the claim for two years' severance pay failed.
Legal principles established
#- The burden of proving unfair termination lies on the employee, while the burden of justifying the grounds of termination lies on the employer under section 47(5) of the Employment Act
- An employer who fails to justify the grounds of and procedure for termination effects unfair termination, attracting remedies under section 49 of the Employment Act
- Where there is no written contract or collective agreement, statutory annual leave under section 28 of the Employment Act is 21 days per year
Court orders
#- 1.A declaration that there was unfair termination of employment
- 2.Compensation awarded at Ksh.10,204.87
- 3.Notice pay of Ksh.10,204.87
- 4.Underpayments of Ksh.152,425.22
- 5.Leave pay of Ksh.6,507
- 6.Overtime awarded at Ksh.151,446.18
- 7.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Relief refused
#Severance pay for 2 years (Ksh.12,286.80)
Not due because the case did not involve redundancy
Leave pay for 50 days (Ksh.19,624.75) as claimed
Award reduced to 22 days' balance at Ksh.6,507 as section 28 of the Employment Act provides for 21 days' annual leave absent a written contract or collective agreement, and the claimant had already enjoyed 30 days
Compensation of 12 months' pay (Ksh.122,458.64) as claimed
Only one month's pay found appropriate
Costs
Each party shall bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Section 47(5) of the Employment Act, 2007 (the Act) places the burden of proving unfair termination of employment on the employee, and the burden of justifying the grounds of termination on the employer.
The court finds the respondent has failed to discharge its obligations under the law. There was unfair termination of employment contrary to section 45 of the Act and the remedies under section 49 of the Act are and shall be assessed accordingly.
Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms; a. A declaration there as unfair termination of employment; b. Compensation awarded at ksh.10,204.87; c. Notice pay Ksh.10,204.87; d. Underpayments ksh.152,425.22; e. Leave pay ksh.6,507; f. Overtime awarded at ksh.151,446.18; and g. Each party shall bear own costs.
On the claim for severance pay, such is not due as this is not a case of a redundancy.
Issues in the judgment
#Typographical errors in dates and figures in the judgment, e.g. '40th April, 2010' appears instead of a valid date
The court's name is misprinted in the header
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwendo Katiku v David Koine t/a City Watch Guards Service [2020] KEELRC 4 (KLR)", Case Analysis (2020). Cause No. 1268 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/4/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.