Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowed· [2020] KEELRC 1808 (KLR)

Gabriel Gicheru Muriuki v Batian Security Company Limited [2020] KEELRC 1808 (KLR)

Employment and Labour Relations Court
3 February 2020
NMNzioki wa Makau
1,392 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled a security guard was unfairly dismissed because his employer couldn't prove he received the show-cause letter or got a hearing.

What this practically means

#

Executive summary

#
The Claimant, a security guard employed on 1st August 2014, sued the Respondent alleging that on 1st August 2016 his supervisor, Mr. Maina, verbally terminated his employment. He sought compensation for unlawful dismissal, public holiday pay, pension dues, unpaid leave for two years, one month's salary in lieu of notice and costs. The Respondent denied any dismissal, asserting the Claimant deserted duty from 1st August 2016; it admitted owing leave for one year plus pro rata leave for seven months, said it had no pension scheme (paying gratuity only after five years), and pleaded limitation under Section 90 of the Employment Act against the leave claim. Both parties testified and filed submissions, the Claimant citing Crown Foods Limited v General Cargo Service and the Respondent citing Pius Machafu Isindu v Lavington Security Guards Limited. The court found that the desertion defence was not proved: the show-cause letter was sent only to the Karatina branch office and there was no proof of delivery to the Claimant, and the Respondent did not avail the muster roll for the period in question. The court held that the termination was unfair because the Claimant received no notice and was not heard, contrary to Sections 41 and 43 of the Employment Act. The termination claim was filed within the three-year limitation period, but leave, holiday and like claims were barred by the twelve-month limitation under Section 90. The suit partially succeeded: the court awarded one month's salary in lieu of notice (Kshs. 6,500/-), three months' salary as compensation (Kshs. 19,500/-), costs capped at Kshs. 20,000/-, and interest on the two sums at court rates from the date of judgment until payment in full. The holiday, leave and pension claims failed. Judgment delivered at Nyeri on 3rd February 2020 by Nzioki wa Makau, Judge.

Key legal issues

#
01

Whether the Claimant was dismissed or deserted duty

Holding

The Claimant proved on a balance of probability that he was terminated orally; the desertion allegation was not proved as delivery of the show-cause letter was not demonstrated.

Reasoning

The court contrasted the Claimant's assertion of oral termination by Mr. Maina with the Respondent's desertion claim. The letter said to have been sent to the Claimant went only to the Karatina office, with no proof it reached him. The Respondent also failed to avail the muster roll for the relevant period, weakening its case.

p. 3
02

Whether the termination was fair and lawful

Holding

The termination was unfair: the Claimant got no notice of termination and was not heard before dismissal, contrary to Sections 41(1) and (2) and 43 of the Employment Act.

Reasoning

The Claimant submitted, without contradiction, that the Respondent failed to prove valid reasons under Section 43 or a hearing under Section 41. The court accepted that on a balance of probability there was unfairness, entitling the Claimant to notice pay and compensation.

p. 3
03

Whether the claim was time-barred under Section 90 of the Employment Act

Holding

The termination claim, filed about 16 months later, was within the 3-year limitation period; however, claims for leave, holidays and underpayments are barred after 12 months and therefore fail.

Reasoning

Section 90 allows termination claims within 3 years, so the suit filed a year and some months after termination was in time. But claims for underpayments and the like carry a 12-month bar, defeating the leave and holiday claims regardless of proof.

p. 3

Legal principles established

#
  • An employer alleging desertion must prove that show-cause correspondence was actually delivered to the employee; unproved delivery cannot establish desertion.
  • A party is bound by its pleadings and cannot change its case midstream.
  • Termination without notice and without a hearing is unfair under Sections 41 and 43 of the Employment Act.

Court orders

#
  1. 1.One month's salary in lieu of notice of Kshs. 6,500/-
  2. 2.Three months' salary as compensation of Kshs. 19,500/-
  3. 3.Costs capped at Kshs. 20,000/-
  4. 4.Interest on the notice pay and compensation at court rates from date of judgment until payment in full

Authorities

#

Legislation

  • Employment ActSection 43
  • Employment ActSection 41(1) and (2)
  • Employment ActSection 90
  • Wages Order1998 Wages Order (gratuity after 5 years)

Cases cited (2)

  • Crown Foods Limited v General Cargo Service
    [2019] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, Sections 41, 43 and 90 applied)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gabriel Gicheru Muriuki v Batian Security Company Limited [2020] KEELRC 1808 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1808/eng@2020-02-03

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