Josphat Mutua Ngovi v Protective Custody Limited [2021] KEELRC 1036 (KLR)
The bottom line
#A Kenyan security guard who refused reassignment got no unfair-termination payout, but his employer still owed him underpaid wages, service pay, leave and house allowance.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's contract was terminated unfairly and unlawfully
No termination occurred; the Claimant declined a lawful reassignment offered in continuity after the expiry of the Kenya Power service agreement.
The Court preferred the Respondent's narrative, corroborated by the Labour Office's findings and the Claimant's own cross-examination admission that he was offered Telkom security nightshift, surrendered his uniform and left. The Labour Office confirmed reassignment was offered and declined and advised the Claimant to report back, which he did not. Consequently there was neither redundancy nor termination, and the declarations, notice pay and compensation were refused.
Underpayment of salary against the statutory minimum wage
Underpayment granted at Kshs. 85,699 for 2012 and 2013 to 1st January 2015, the Kshs. 7,000 monthly salary being below the applicable Wage Amendment Orders.
The only evidence of a Kshs. 443 daily rate was Rogers' word, while bank statements supported a monthly salary of Kshs. 7,000. The Respondent's explanation that the amount was net was unsupported by evidence of allowances or gross pay, and the amount appeared out of tune with the industry minimum wage. The Court therefore applied the Wage Amendment Orders to compute the shortfall.
Service pay/severance
Granted at Kshs. 33,750, being 18 days' salary for each of 5 completed years, per Regulation 17(1) of the Protective Security Services Order, 1998.
Although there was no redundancy, the Claimant as a Security Guard who had served over 5 years merited gratuity under the Protective Security Services Wage Order, computed on the applicable salary at Kshs. 9,780 divided by 26 working days, at 18 days for each of the 5 completed years of service.
Annual leave pay
Granted at Kshs. 48,880, being 26 days per year at the daily rate of Kshs. 376 for 5 years.
The Respondent asserted the Claimant utilised his leave but exhibited no leave records. Regulation 10(1) of the Wage Order entitles Security Guards to 26 days' annual leave with full pay after each 12 months' consecutive service, and the Court allowed the prayer on that basis.
House allowance
Granted at Kshs. 101,223, being 15% of Kshs. 9,780 over 69 months, no free housing having been availed.
The Respondent did not discount the prayer and failed to clarify the gross pay or whether allowances included house allowance. Regulation 5 of the Wage Order grants Security Guards, where no free housing is availed, a housing allowance of Kshs. 1,000 per month or 15% of basic salary, whichever is higher; the Court applied 15% over the 69 months worked.
Legal principles established
#- An employee offered alternative work in continuity after the expiry of a client service agreement, who declines reassignment, is not terminated and cannot claim unfair termination or redundancy dues.
- An employer alleging payment of a daily/hourly rate below or inconsistent with the statutory minimum wage must prove what allowances were paid and what the gross salary was.
- Security Guards are entitled to gratuity after 5 years' service at 18 days' salary for every completed year of service under Regulation 17(1) of the Regulation of Wages (Protective Security Services) Order, 1998.
- An employer asserting that an employee utilised annual leave bears the evidential burden of producing leave records; absent records, leave pay is granted.
Court orders
#- 1.The Respondent shall pay to the Claimant: underpayment of salary at Kshs. 85,699; service pay at Kshs. 33,750; annual leave at Kshs. 48,880; and house allowance at Kshs. 101,223 – total Kshs. 269,552
- 2.No order on the costs and interest
- Jurisdiction invoked
- Employment and Labour Relations Court first-instance jurisdiction under the Employment Act (not expressly cited in the judgment extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Mutua Ngovi v Protective Custody Limited [2021] KEELRC 1036 (KLR)", Case Analysis (2021). Cause No 1680 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1036/eng@2021-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.