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ELRCPartially AllowedCause No. 2401 of 2016

Charles Maningi Shalala v Lavington Security Limited [2021] KEELRC 1481 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
18 February 2021
1,620 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan security guard fired for joining an unprotected strike won only Ksh.38,795.60 for untaken rest days; every other claim failed.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from January 2001 and last earning Ksh.10,500 monthly, sued for unfair and unlawful termination following his summary dismissal by letter dated 6th September 2016 pursuant to sections 44(4)(a) and (g) of the Employment Act. He sought notice pay, underpayments, unpaid leave, house allowance, overtime, public holidays, rest days, service pay, uniform refund and compensation. The defence was that on 5th September 2016 the claimant joined an unprotected sit-in/demonstration by fellow guards seeking a salary increase, left his duty station without handing over, failed to respond to a notice to show cause issued under section 41, and was lawfully summarily dismissed. The court found the claimant's evidence internally contradictory and dishonest, noting his own letter of summary dismissal established that he did not work after 6th September 2016. It held that unprotected industrial action cannot found a claim for unfair termination and that notice pay and compensation are unavailable where dismissal is justified. The underpayment, house allowance, overtime, holiday, leave and service pay claims all failed: the claimant's own endorsed pay slips showed wages above the applicable minimum wage, the overtime and holiday claims were unparticularised, and NSSF registration precluded service pay. Only the rest days claim succeeded, the respondent having failed to show how the section 27 entitlement was secured, yielding an award of Ksh.38,795.60 computed on the minimum wage. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the summary dismissal of the claimant on 6th September 2016 following an unprotected strike/sit-in was unfair and unlawful
  2. 2.Whether the claimant is entitled to notice pay and compensation for unfair termination
  3. 3.Whether the claimant was underpaid relative to the Wage Orders
  4. 4.Whether the claims for unpaid leave, house allowance, overtime, public holidays, rest days and service pay are proved
  5. 5.Whether the claimant is entitled to a refund of uniform deductions

Key legal issues

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01

Whether the summary dismissal for participating in an unprotected strike was unfair

Holding

The dismissal was lawful and justified; the claimant's evidence was discredited and his own pleadings confirmed he knew of the summary dismissal dated 6th September 2016

Reasoning

The claimant gave contradictory evidence, at one point claiming he was on duty in October 2016, and at another that he was on leave and not allowed back. His own letter of summary dismissal dated 6th September 2016 proved he did not work after that date. The court found him dishonest and held that unprotected industrial action cannot found a claim for unfair termination, so the subsequent summary dismissal was lawful and justified.

p. 2
02

Underpayment and house allowance claims

Holding

Dismissed; the claimant's own endorsed payment statements showed wages above the applicable minimum wage

Reasoning

Although the employer is custodian of records and its defence of a consolidated wage was insufficient, the claimant attached pay slips to his Memorandum of Claim showing gross wages of Ksh.8,380 (2012), Ksh.9,800 and Ksh.9,600 (2013) and Ksh.10,500 (2016), all above the minimum wage for a guard, demonstrating adequate compensation.

p. 3
03

Rest days claim

Holding

Allowed; the claimant was awarded Ksh.38,795.60 for rest days not taken, computed on the minimum wage

Reasoning

Rest days are regulated under section 27 of the Employment Act, 2007. Once the claimant pleaded a weekly rest day claim, the respondent was required to show how the right was secured or payment made in lieu. This was not materially challenged, so the court computed the dues for 48 days in 2012 and 48 days in 2013 and 2014 on the minimum wage.

p. 3
04

Overtime, holidays and service pay claims

Holding

All dismissed for lack of particularisation or proof; service pay is not due where NSSF dues are paid

Reasoning

The overtime claim was not particularised as to hours worked each day and could not be sustained by a global assertion of 87 hours weekly. The holidays claim was general and public holidays are gazetted. Service pay is not payable where the employee was registered with NSSF and NHIF, as shown on the payment statements.

p. 3

Legal principles established

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  • Participation in an unprotected industrial action justifies summary dismissal and cannot ground a claim for unfair termination
  • The employer is the custodian of employment records and bears the evidential burden of producing wage records to disprove underpayment claims
  • The Wage Orders set a basic minimum wage for protected employees such as guards, and a defence of a consolidated wage is not sufficient to defeat a statutory entitlement claim
  • Where an employee claims rest days not taken, the employer must adduce evidence that the right was secured or payment made in lieu, failing which the claim succeeds

Court orders

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  1. 1.The claims made are found without merit save that the claimant shall be paid for rest days not taken at Ksh.38,795.60 only
  2. 2.Each party shall bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution (employment and labour relations jurisdiction) - the claim was filed in the Employment and Labour Relations Court as ELRC Cause No. 2401 of 2016

Relief refused

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Notice pay and compensation for unfair termination

The claimant participated in an unprotected industrial action and was lawfully summarily dismissed; these remedies are unavailable where dismissal is justified

p. 2

Underpayments (2012 to 2015)

The claimant's own pay slips showed he was paid above the applicable minimum wage

p. 3

Unpaid leave (2004 to 2009)

The claimant took his annual leave and the defence that leave days were spent was not rebutted

p. 2

Unpaid house allowance

Pay slips showed adequate compensation; a further house allowance would be unjust enrichment

p. 3

Unpaid overtime

The claim was not particularised as to the nature of hours worked each day

p. 3

Unpaid holidays

The claim was general; public holidays are gazetted and do not apply generally

p. 3

Service pay

The claimant was registered with NSSF and NHIF, so service pay is not due

p. 3

Refund of uniform Ksh.5,000

The claimant was directed to attend the shop floor, undertake clearance and address the deductions there

p. 3

Costs

Each party shall bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Industrial action that is unprotected cannot form basis of a claim for unfair termination of employment. subsequent summary dismissal is lawful and justified.
p. 2Summary dismissal for unprotected strike
Compensation and notice pay are remedies not available in a case of justified termination of employment.
p. 2Remedies upon justified termination
On the claim for underpayments, the employer is the custodian of work records.
p. 2Employer's duty to keep and produce wage records
The claimant as a guard had his wages protected in law and the Wage Orders serve as a basic minimum.
p. 2Wage Orders as minimum wage protection
Accordingly, the claims made are found without merit save the claimant shall be paid for rest days not taken at ksh.38,795.60 only.
p. 3Final orders
Each party shall bear own costs.
p. 3Costs order

Issues in the judgment

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minor

The opening states the claimant was employed in January 2001 at a wage of 'ksh.1,8999 per month' - an apparent typographical error in the wage figure

minor

The judgment inconsistently places the sit-in at 'the office in Milimani' while evidence elsewhere refers to Kilimani as the claimant's deployment zone

minor

Contradictory leave evidence: the claimant testified he was on leave ending 30th September 2016 yet also claimed to have been on duty in October 2016, which the court noted and disbelieved

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, "Charles Maningi Shalala v Lavington Security Limited [2021] KEELRC 1481 (KLR)", Case Analysis (2021). Cause No. 2401 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1481/eng@2021-02-18

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