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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 1258 (KLR)

Daniel Nyachuba Ondieki v Kundan Singh Construction Co.Ltd t/a Leopard Beach Resort & Spa [2021] KEELRC 1258 (KLR)

Employment and Labour Relations Court
16 July 2021
1,969 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 a security guard's dismissal unfair because the employer proved no misconduct and gave no hearing, but most money claims were too late.

What this practically means

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Executive summary

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The claimant, employed as a watchman by the respondent from 01.09.1998, claimed he was deployed as supervisor of hotel security from December 1998 without corresponding appointment or pay, and was summarily dismissed in February 2012 on allegations that he failed to prevent a theft after goods were found in a supplies van. He sought declarations of unlawful dismissal, 12 months' salary in compensation and various monetary claims (underpayment, night allowance, overtime, uniform, acting allowance) totalling Kshs. 2,829,881.00. The respondent denied employing him as a supervisor, justified the termination as gross misconduct, and relied on the union-brokered conversion of the dismissal to termination with payment of final dues. The Court found the parties were in a contract of service and that the claimant held a duly appointed acting position as Security Supervisor until termination. It held the termination unfair both procedurally and substantively for want of notice and hearing contrary to section 41, want of a valid reason under section 43, and non-compliance with section 45, noting no disciplinary hearing, no response to the claimant's appeal for a hearing, and no exhibited investigation report. Applying section 49, the Court awarded seven months' gross salary (Kshs. 155,911.00) plus the respondent's computed final dues of Kshs. 152,230.00. Claims for underpayment, night allowance, overtime, uniform and acting allowance, save as acknowledged in the respondent's computation, were held time-barred under section 90 of the Employment Act. Judgment was entered for the claimant with costs.

Key legal issues

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01

Existence and terms of the contract of service

Holding

The parties were in a contract of service; the claimant was employed as a watchman by letter dated 31.08.1998 and, by the letter dated 24.11.2000, was appointed to act as Security Supervisor effective 01.12.2000, an acting appointment never terminated until the employment ended

Reasoning

The Court relied on the letter of appointment, the claimant's letter of 23.03.2000 and the management endorsement, and the acting appointment letter of 24.11.2000 signed by the claimant on 01.12.2000. Absent correspondence terminating the acting appointment, it subsisted until termination of employment.

p. 2
02

Fairness of the termination

Holding

The termination was unfair both procedurally and substantively for failure to comply with sections 41, 43 and 45 of the Employment Act

Reasoning

There was no evidence of a disciplinary hearing despite the claimant's appeal seeking to be heard; the claimant's letter of 27.02.2012 was not answered; the investigation report was never exhibited; and the respondent placed no material showing the claimant was guilty of the alleged misconduct.

p. 3
03

Compensation under section 49

Holding

Seven months' gross salary awarded instead of the 12 months claimed, in addition to the final dues of Kshs. 152,230.00 which the Court found justified and due

Reasoning

The Court considered the section 49 factors: the claimant was willing to continue in service, had served 13 years and 5 months with a clean record, and the respondent had already computed final dues of Kshs. 152,230.00 which the Court found due and awarded.

p. 3
04

Limitation of the monetary claims

Holding

Claims for underpayment, night allowance, uniform and acting allowance, save as acknowledged in the respondent's computation, were time-barred under section 90 of the Employment Act

Reasoning

The termination letter was dated 26.03.2012 and the suit filed 13.03.2015. Treating the claims as continuing injuries, the cause of action expired about 26.03.2013; the 1999 uniform claim's three-year limitation had lapsed long before filing.

p. 3

Legal principles established

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  • Termination of employment is unfair where the employee is not given due notice and a hearing and where the employer fails to establish a valid reason for termination
  • An employer alleging misconduct bears the burden of placing material before the court to prove the misconduct
  • Under section 90 of the Employment Act, continuing injuries attract a cause of action limited to 12 months after cessation of the continuing injury, and the general limitation is three years

Court orders

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  1. 1.Declaration that the termination of the contract of employment by the respondent was unfair and unlawful
  2. 2.Respondent to pay the claimant Kshs. 152,230.00 plus Kshs. 155,911.00 (less PAYE only on the Kshs. 155,911.00) by 01.09.2021, failing interest at court rates from the date of judgment till full payment
  3. 3.Respondent to pay the claimant's costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 49 and 90 as applied)

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, "Daniel Nyachuba Ondieki v Kundan Singh Construction Co.Ltd t/a Leopard Beach Resort & Spa [2021] KEELRC 1258 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1258/eng@2021-07-16

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