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ELRCPartially AllowedCause No. 1700 of 2017· [2022] KEELRC 337 (KLR)

David Nyabuto Mogara v Spur Security Services Limited [2022] KEELRC 337 (KLR)

Employment and Labour Relations Court
18 March 2022
AMAnna Ngibuini Mwaure
931 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a security guard forced to resign over underpayment was constructively dismissed and awarded him nearly Kshs. 198,000.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from 13th March 2014 at a monthly salary of Kshs.7,000/=, claimed he was constructively dismissed on 12th February 2016 after the Respondent refused to respond to his repeated inquiries about underpayment of his salary contrary to the Regulations of Wages (General Amendment) Order 2015, forcing him to resign. He sought damages of Kshs.313,165.36 plus 12 months' salary compensation of Kshs.146,653.20. The Respondent neither filed a response nor defended the suit, so the claim proceeded undefended and uncontroverted. The court framed two issues: whether the Claimant was unlawfully terminated and whether he was entitled to the claims prayed. Relying on Coca Cola East and Central Africa v Maria Kagal Ligaga (2015) eKLR on the employer's conduct being the relevant consideration in constructive dismissal, and noting that although the resignation letter itself was not produced the Respondent had made no effort to defend the suit, the court found constructive dismissal proved. The court awarded notice pay of Kshs.12,221.10, house allowance of Kshs.36,139.67, wage underpayment of Kshs.93,930.30, unpaid leave of Kshs.12,221.10, unpaid public holidays of Kshs.12,803.06, service pay of Kshs.6,110.55 (no proof of NSSF remittances), and two months' salary compensation of Kshs.24,442.20 for the wrongful constructive dismissal, considering his length of service. Overtime was declined for want of particulars. The final award was Kshs.197,867.98, with costs to the Claimant and interest at court rates from the date of judgment until final payment. Judgment was delivered virtually under the COVID-19 directions.

Key legal issues

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01

Whether constructive dismissal was proved

Holding

Constructive dismissal proved on the uncontroverted evidence, the Claimant having resigned after the Respondent failed to respond to his inquiries about underpayment contrary to the wages regulation order

Reasoning

The Respondent did not file a response or defend the suit, leaving the Claimant's evidence uncontroverted. The Claimant testified he was employed as a security guard at Kshs.7,000/= per month, below the Regulations of Wages (General Amendment) Order 2015, and that the Respondent refused to address his inquiries, forcing him to resign. The resignation letter itself was not produced, only the Respondent's acknowledgement letter, but in the absence of any defence the court found constructive dismissal established.

p. 2
02

What remedies flow from the wrongful constructive dismissal

Holding

Notice pay, house allowance, wage underpayment, leave, public holidays, service pay and two months' compensation awarded; overtime declined for want of particulars

Reasoning

Having found constructive dismissal, the court assessed each head of claim. Notice pay was pegged at Kshs.12,221.10 in harmony with the wages order. House allowance, leave, public holidays and service pay were awarded because the Respondent did not discharge the burden of proving payment or NSSF remittances. Overtime failed for lack of specific particulars, and compensation was limited to two months given the length of service.

p. 2

Legal principles established

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  • In constructive dismissal, the relevant conduct is that of the employer, not the employee
  • An undefended claim is uncontroverted and must be considered by the court

Court orders

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  1. 1.One month salary in lieu of notice of Kshs.12,221.10
  2. 2.Unpaid house allowance of Kshs.36,139.67
  3. 3.Wage underpayment of Kshs.93,930.30
  4. 4.Unpaid leave of Kshs.12,221.10
  5. 5.Unpaid public holidays of Kshs.12,803.06
  6. 6.Service pay of Kshs.6,110.55
  7. 7.Salary compensation equivalent to 2 months (Kshs.24,442.20) for wrongful termination due to constructive dismissal
  8. 8.Costs of the claim to the Claimant
  9. 9.Interest at court rates from the date of judgment until final payment
  10. 10.Final award of Kshs.197,867.98

Authorities

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Legislation

  • Regulations of Wages (General Amendment) Order2015 Order
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (1)

  • COCA COLA EAST AND CENTRAL AFRICA VS MARIA KAGAL LIGAGA
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment and Labour Relations Court Act); judgment delivered pursuant to Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act

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, "David Nyabuto Mogara v Spur Security Services Limited [2022] KEELRC 337 (KLR)", Case Analysis (2022). Cause No. 1700 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/337/eng@2022-03-18

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