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ELRCPartially AllowedNot stated in the judgment as extracted· [2020] KEELRC 473 (KLR)

Alex Siboi Masinde & another v K K Security [2020] KEELRC 473 (KLR)

Employment and Labour Relations Court
18 September 2020
MOMAUREEN ONYANGO
2,702 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that employees arrested and detained were not deserters, and their dismissal without a fair hearing was unlawful.

What this practically means

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Executive summary

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Two claimants, Alex Siboi Masinde and Okemwa Peter Magara, formerly employed as security guards by the respondent, sued for unfair termination and unpaid terminal dues. They were employed in 2007 and 2008 and were summarily dismissed on 18th July 2013 on account of desertion of duty, following a robbery on 11th July 2013 at the premises they guarded. They contended that their absence from work was due to their arrest, detention at Industrial Area Police Station and remand in Criminal Case No. 3234 of 2013, after which the criminal charge was dismissed for failure of the respondent to produce witnesses. The respondent maintained that the claimants deserted lawful duties, that it could not accord them a hearing as they were unavailable, and that terminal dues were not computed because the claimants failed to release the respondent's properties. The court framed two issues: whether the claimants were unlawfully terminated or deserted duty, and whether they were entitled to the remedies sought. Relying on Seabolo v Belgravia Hotel, Felistas Acheha Ikatwa and Walter Ogal Anuro, the court held that the claimants were under lawful custody with the respondent's knowledge and therefore did not absent themselves without lawful cause; further, even if they had absconded, they were entitled to a fair disciplinary process under Section 41 of the Employment Act, which the respondent failed to provide. The termination was found unlawful, unfair and wrongful. The court awarded each claimant unpaid July 2013 salary, one month's salary in lieu of notice under Section 36, and 10 months' salary as compensation under Section 49 - totals of Kshs.137,168.31 and Kshs.124,648.62 respectively. The unpaid leave allowance claim failed for want of proof. The claimants were awarded costs with interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Whether the Claimants deserted duty or were unlawfully terminated

Holding

The Claimants did not desert duty; their absence was occasioned by arrest and detention under lawful custody, and the Respondent failed to accord them a fair disciplinary process

Reasoning

Section 44(4)(a) permits summary dismissal for absence without leave or other lawful cause. The Claimants were in lawful police custody following a robbery at premises they guarded, and the Respondent knew the reason for their absence. Their appeal letters explained their whereabouts. Even if they had absconded, the Respondent produced no evidence of a disciplinary hearing or notice as required by Section 41 of the Employment Act, so termination was both substantively unjustified and procedurally unfair.

p. 4
02

Whether the Claimants are entitled to the remedies sought

Holding

The Claimants were awarded unpaid July 2013 salary, one month's salary in lieu of notice and 10 months' salary as compensation for unfair termination, but the unpaid leave allowance claim failed for want of proof

Reasoning

Salary for days worked in July 2013 was undisputed. One month's salary in lieu of notice was payable under Section 36 of the Employment Act. Compensation of 10 months' salary under Section 49 was considered reasonable given the length of employment, the circumstances of termination, the discharge under Section 87(1) of the Criminal Procedure Code for failure of the Respondent to produce witnesses, and the fact that the Respondent caused the arrest and detention.

p. 4

Legal principles established

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  • An employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee to resume duty and, at the very least, issue notice that termination on the ground of desertion is being considered
  • A valid termination of employment requires both substantive justification and procedural fairness
  • Desertion is distinguishable from absence without leave by the employee's intention not to return

Court orders

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  1. 1.Judgment entered in favour of the 1st Claimant, Alex Siboi Masinde, in the total sum of Kshs.137,168.31 (unpaid July 2013 salary Kshs.5,080.31; salary in lieu of notice Kshs.12,008.00; compensation for unfair termination Kshs.120,080.00)
  2. 2.Judgment entered in favour of the 2nd Claimant, Okemwa Peter Magara, in the total sum of Kshs.124,648.62 (unpaid July 2013 salary Kshs.4,616.62; salary in lieu of notice Kshs.10,912.00; compensation for unfair termination Kshs.109,120.00)
  3. 3.The Claimants are awarded costs
  4. 4.Interest to accrue at Court rates from the date of Judgment until payment in full

Authorities

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Legislation

  • Employment ActSections 36, 41, 43, 44(4)(a), 45, 49
  • Criminal Procedure CodeSection 87(1)
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • SABC v CCMA & Others
    (2002) 8 BLLR 693 (LAC)
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    (2015) eKLR
  • Tirus Kariuki Mungai v Postal Corporation of Kenya
    (2016) eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    (2014) eKLR
  • David Gichana Omuya v Mombasa Maize Millers Limited
    (2014) eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    (2018) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (inferred from court; not expressly cited in extract)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Alex Siboi Masinde & another v K K Security [2020] KEELRC 473 (KLR)", Case Analysis (2020). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/473/eng@2020-09-18

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