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ELRCPartially AllowedCause No 941 of 2016· [2021] KEELRC 538 (KLR)

Wasike Hashim v Brinks Security Services Limited [2021] KEELRC 538 (KLR)

Employment and Labour Relations Court
8 November 2021
2,880 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan employer calling an employee a deserter must prove it tried to contact them and issued proper letters, or the dismissal becomes unfair.

What this practically means

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Executive summary

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The Claimant, a security guard employed on 16 August 2011 at a monthly salary of Kshs.10,500, sued alleging wrongful, unfair and discriminatory summary dismissal on 17 February 2015 after 3½ years of service. He sought a declaration, one month's pay in lieu of notice, 12 months' salary as damages, leave and severance pay, a certificate of service and costs. The Respondent denied dismissal, asserting the Claimant absconded duty from 18 February 2015 after a warning letter, and counterclaimed for one month's notice pay and unreturned company items. The Respondent produced prior warnings, leave application forms and an unsigned clearance certificate; the Claimant denied the documents and called all signatures fake. The Court found the clearance certificate dated 17 February 2015 irreconcilable with a warning letter dated 18 February 2015, and found the Claimant economical with the truth on leave. However, the Respondent led no evidence of any disciplinary process, show cause or termination letter, or efforts to contact the allegedly absent employee. The Claimant's claim of termination without prescribed procedure therefore remained uncontroverted, and the termination was declared unfair but not discriminatory. The Court awarded one month's notice pay (Kshs.10,500) and three months' salary under Section 49(1)(c) (Kshs.31,500), citing the Claimant's conduct and prior warnings, plus a certificate of service and costs. The amorphous leave and severance claim was declined, as was the Respondent's counter claim in its entirety. Judgment was entered for the Claimant for Kshs.42,000 with costs and interest, dated 8 November 2021 and delivered virtually at Nairobi.

Key legal issues

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01

Whether the Claimant's termination was unlawful

Holding

The termination was unfair and uncontroverted; the Respondent failed to prove desertion or compliance with the procedural requirements of the Employment Act

Reasoning

The Court found the clearance certificate dated 17 February 2015 inconsistent with the allegedly later warning letter of 18 February 2015, and no evidence of a disciplinary process or attempt to contact the alleged deserter. The Respondent led no evidence of any show cause or termination letter. The Claimant's allegation of termination without prescribed procedure therefore remained uncontroverted.

p. 4
02

Whether the Respondent's counter claim for notice pay and unreturned items succeeded

Holding

Both heads declined

Reasoning

Having found no desertion, the claim for one month's notice pay under Section 36 was unsustainable. The discharge certificate was unsigned, dated eight days after the Claimant left, and the Respondent led no evidence of demand for the items.

p. 4

Legal principles established

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  • For a termination to be lawful, it must satisfy both substantive and procedural fairness under the Employment Act
  • An employer alleging desertion must demonstrate reasonable attempts to contact the employee and issue a show cause and/or termination letter

Court orders

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  1. 1.Declaration that the summary dismissal was unfair (though not discriminatory)
  2. 2.Award of one month's salary in lieu of notice of Kshs.10,500
  3. 3.Award of the equivalent of 3 months' salary (Kshs.31,500) under Section 49(1)(c) of the Employment Act as damages for unfair termination
  4. 4.Certificate of service to be issued to the Claimant
  5. 5.Claimant awarded costs of the suit
  6. 6.Leave and severance pay claim declined
  7. 7.Counter claim for one month's salary in lieu of notice declined
  8. 8.Prayer for return of unreturned company property declined and costs of the counter claim declined
  9. 9.Judgment entered for the Claimant in the sum of Kshs.42,000 with costs and interest at court rates from the date of judgment until payment in full

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSections 34, 40, 42, 43, 44, 45, 46, 47
  • Employment Act, 2007Section 47(5)
  • Employment ActSections 49, 49(1)(c)
  • Employment ActSection 36
  • Evidence ActSection 107
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (17)

  • Kenya Union of Commercial Food and Allied Workers Union v Meru North Farmers Sacco Ltd
    [2017] eKLR
  • CMC Aviation Ltd v Captain Mohammed Noor
    [2015] eKLR
  • Hosea Akunga Ombwori v Bidco Oil Refineries Limited
    [2017] eKLR
  • Milicent Adede v International Child Support Africa
    [2014] eKLR
  • George Onyango Akuti v G4S Security Services Kenya Ltd
    [2013] eKLR
  • Peyiai Nkoitoi v Aruba Mara Camp Safaris Ltd
    [2021] eKLR
  • CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd)
    [1978] eKLR
  • Rudolf Shitandi Daraja v Zablon Juma Atulo t/a Z.J. Atulo & Company Advocates
    [2016] eKLR
  • Irene Mweni Kimeu v Mercy Makena t/a Court Yard Garden Hotel
    [2021] eKLR
  • Hassanath Wanjiku v Vanela House of Coffees
    [2018] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Boniface Francis Mwangi v B.O.M Iyego Secondary School
    [2019] eKLR
  • Simon Mbithi Mbane v Inter Security Services Ltd
    [2018] eKLR
  • John Nzioka v Smart Coatings Ltd
    [2017] eKLR
  • Liz Ayany v Leisure Lodge Ltd
    [2015] eKLR
  • KUCFAWU v Kisii Bottlers Ltd
    [2020] eKLR
  • Daniel Kiplagat Kipkeibo v SMEP Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 34, 40-47, 49) as pleaded in the memorandum of claim

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, "Wasike Hashim v Brinks Security Services Limited [2021] KEELRC 538 (KLR)", Case Analysis (2021). Cause No 941 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/538/eng@2021-11-08

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