Kenya National Private Secureity Workers Union v Guard Force Security Limited [2021] KEELRC 1985 (KLR)
The bottom line
#A Kenyan court awarded a security guard Kshs.480,325 after his employer retrenched him without notice, consultation, Labour office notification, or payment of dues.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the retrenchment
The retrenchment was substantively and procedurally unfair under Sections 36, 40, 41 and 45 of the Employment Act
The grievant was employed on an oral contract as a security guard and stopped working on 30/9/2017 when asked to return his uniform without notice, consultation or payment of terminal benefits. The respondent also failed to notify the Labour office. The uncontroverted evidence proved unlawful retrenchment on a balance of probability.
Entitlement to compensation
Five months' salary awarded as compensation under Section 49(1) and (4), considering two years' service, no contribution to the termination, and unpaid dues
The Court considered the grievant's two years of service, that he did not contribute to the termination, and that he was not compensated for loss including underpayments, leave pay and salary earned. It applied its approach in the Joshua Mwaniki case where a claimant with 2 years 6 months service received six months' compensation, and awarded five months here.
Terminal benefits
September salary, two years' leave pay, 12 months' overtime and 57 months' underpayments awarded as claimed
The claimant proved on a balance of probabilities that the grievant was owed and not paid the terminal benefits set out in the Statement of Claim. The respondent was on notice but did not enter appearance or file a defence despite service, leaving the evidence uncontroverted.
Legal principles established
#- Retrenchment must comply with the substantive and procedural requirements of Section 40 of the Employment Act, including notice and notification of the Labour office
- An employee unlawfully and unfairly terminated who did not contribute to the termination and was unpaid terminal benefits deserves compensation under Section 49
Court orders
#- 1.Compensation equivalent of five (5) months' salary for unlawful and unfair termination in the sum of Kshs.61,105
- 2.September salary – Kshs.12,221 (stated in the order as Kshs.12,22)
- 3.Unpaid two years leave – Kshs.24,442
- 4.Unpaid overtime for 12 months – Kshs.84,960
- 5.Underpayments for 57 months – Kshs.297,597
- 6.Total award of Kshs.480,325 payable with interest at Court rates from date of judgment till payment in full
- 7.Costs to follow the event
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Secureity Workers Union v Guard Force Security Limited [2021] KEELRC 1985 (KLR)", Case Analysis (2021). ELRC Cause (filed 11/10/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1985/eng@2021-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.