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ELRCPartially AllowedCause No. 1701 of 2017· [2022] KEELRC 344 (KLR)

Benson Kamandi Imbuki v Spur Security Services Limited [2022] KEELRC 344 (KLR)

Employment and Labour Relations Court
18 March 2022
AMAnna Ngibuini Mwaure
1,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that failed to defend an unfair termination claim was ordered to pay a former security guard nearly Kshs.300,000 plus costs and interest.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard from 1st September 2010 at a monthly salary of Kshs.9,942, claimed his employment was wrongfully and unfairly terminated in February 2017 without reason, notice or payment in lieu, and that outstanding wages, severance and vacation pay were unpaid. He sought damages of Kshs.797,798.92 plus 12 months' compensation of Kshs.146,653.20. The Respondent filed no response and the case proceeded undefended, rendering the Claimant's evidence uncontroverted. The court framed two issues: whether the termination was unlawful and whether the reliefs were payable. Applying Sections 43 and 45 of the Employment Act 2007 and the decision in Walter Ogal Anuro v Teachers Service Commission, the court held that an employer must prove both valid reason (substantive justification) and procedural fairness, failing which the termination is deemed unfair. The Respondent, having not defended the claim, proved nothing, and the court declared the termination both unlawful and procedurally flawed. On reliefs, the court awarded notice pay of Kshs.12,221.10, wages underpayment of Kshs.71,133.90, house allowance of Kshs.77,778.59, unpaid leave of Kshs.46,265.60, service pay of Kshs.52,776 and three months' compensation of Kshs.36,663.30, totalling Kshs.296,838.49. Overtime and rest-day claims were declined as unparticularised and unproved. The Claimant was awarded costs, interest at court rates from the date of judgment, and a certificate of service. Judgment was delivered on 18th March 2022 via video conferencing under the COVID-19 directions.

Key legal issues

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01

Whether the termination of the Claimant's employment was unlawful and unfair

Holding

The termination was both unlawful and procedurally flawed as the Respondent, having not filed a defence, failed to prove any valid reason for termination.

Reasoning

Section 45(2) of the Employment Act renders a termination unfair where the employer fails to prove a valid reason, and Section 43 obliges the employer to prove the reasons for termination. The Respondent did not defend the claim, so the Claimant's evidence was uncontroverted. Following Walter Ogal Anuro v Teachers Service Commission, both substantive justification and procedural fairness were required and none was demonstrated. The court declared the termination unlawful.

p. 2
02

Whether the Claimant is entitled to the reliefs claimed

Holding

Partially - notice pay, underpayment, house allowance, leave and service pay were awarded as uncontroverted or unproved by the Respondent; overtime and rest-day pay were declined for lack of particularisation and proof.

Reasoning

The court assessed each head of relief on the uncontroverted evidence and the Regulation of Wages (General Amendment) Order 2015. Claims the Respondent did not disprove (notice, underpayment, house allowance, leave, service pay) were awarded; unparticularised and unproved heads (overtime, rest days) were declined. Compensation was limited to three months' salary given the period served.

p. 2

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • Where the employer fails to prove the reason for termination, the termination is deemed unfair under Section 45 of the Employment Act

Court orders

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  1. 1.Judgment entered on behalf of the Claimant against the Respondent
  2. 2.Award of Kshs.296,838.49 comprising one month salary in lieu of notice Kshs.12,221.10, wages underpayment Kshs.71,133.90, unpaid house allowance Kshs.77,778.59, unpaid leave Kshs.46,265.60, service pay Kshs.52,776, and 3 months' compensation Kshs.36,663.30
  3. 3.Respondent to pay the Claimant's costs
  4. 4.Respondent to pay interest at court rates from the date of judgment until full payment
  5. 5.Claimant to be issued with a certificate of service

Authorities

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Legislation

  • Employment Act 2007Section 45(1)
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 43
  • Regulation of Wages (General Amendment) Order 2015general
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (1)

  • Walter Ogal Anuro vs Teachers Service Commission
    Case No. 955 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (employment dispute)

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, "Benson Kamandi Imbuki v Spur Security Services Limited [2022] KEELRC 344 (KLR)", Case Analysis (2022). Cause No. 1701 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/344/eng@2022-03-18

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