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ELRCDismissedCause No 1002 of 2017· [2022] KEELRC 391 (KLR)

David Nyamanya Nyaundi v Perimeter Protection Limited [2022] KEELRC 391 (KLR)

Employment and Labour Relations Court of Kenya
31 March 2022
SRStella Rutto
3,667 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 who absconded duty and ignored a show cause letter lost his claim that he was unfairly made redundant.

What this practically means

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Executive summary

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The claimant, employed as a security guard from November 2008, claimed he was declared redundant by a letter dated 1st March 2017 which he refused to sign, after which he was denied access to his work station. He sought severance pay, compensatory damages for unfair termination, notice pay, accrued overtime, off days, unremitted KRA and insurance deductions and a certificate of service. The respondent denied issuing the redundancy letter (alleging it was an internal template for its Advocates that disappeared from its offices) and asserted the claimant was summarily dismissed for absconding duty after prior warnings. The court framed three issues: whether the claimant was made redundant or summarily dismissed; whether the exit was unfair and unlawful; and entitlement to reliefs. It held the alleged redundancy letter was unaddressed, never issued to the claimant and unsupported by the demand letter, finding instead that the claimant was summarily dismissed for desertion. On substance, the claimant's explanation for his absence from 1st to 14th March 2017 was implausible and his demeanor untruthful. On procedure, the respondent issued a show cause letter which the claimant snubbed, frustrating the disciplinary process. The dismissal was therefore neither unfair nor unlawful, defeating severance pay, compensatory damages and notice pay. Overtime and off-day claims failed for lack of evidence, and the respondent proved the insurance cover and NSSF remittances. The claimant was however awarded a certificate of service under section 51(1) of the Employment Act. The claim was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Whether the claimant was declared redundant or summarily dismissed

Holding

The claimant was summarily dismissed, not declared redundant; the alleged redundancy letter was unaddressed and not issued to him

Reasoning

The letter dated 1st March 2017 had no addressee and did not mention the claimant, and the claimant did not explain how he obtained it. The demand letter made no mention of redundancy. The respondent produced a dismissal letter dated 29th March 2017 referring to a show cause, proving summary dismissal on grounds of desertion rather than redundancy.

p. 3
02

Whether the summary dismissal was substantively fair

Holding

Yes - the claimant absconded duty, giving the respondent valid reason for disciplinary action

Reasoning

The claimant was instructed not to report to the client's assignment only, not barred from the respondent's premises. He did not deny absence from 1st to 14th March 2017, and the show cause letter for desertion showed the respondent still considered him an employee. His demeanor was found untruthful.

p. 5
03

Whether the dismissal was procedurally fair under section 41

Holding

Yes - the respondent issued a show cause letter and the claimant snubbed it, frustrating the disciplinary process

Reasoning

The respondent produced a show cause letter addressed to the claimant requiring him to explain his absence. He refused to sign but took a copy and never returned. By his own conduct he forfeited the opportunity to be heard, leaving the employer with no option but dismissal.

p. 5
04

Entitlement to certificate of service

Holding

Entitled, as employment was not disputed

Reasoning

The claimant's employment was not disputed, and section 51(1) of the Employment Act entitles an employee to a certificate of service upon termination.

p. 5

Legal principles established

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  • Under section 43(1) of the Employment Act, an employer bears the burden of proving the reasons for termination, failing which the termination is unfair
  • A termination is unfair under section 45(2) if the employer fails to prove a valid and fair reason or compliance with fair procedure
  • Section 41(1) requires notification of the employee of the allegations in a language they understand in the presence of another employee or representative
  • An employee who fails to respond to a show cause letter cannot later claim he was not heard

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment Actsection 44
  • Employment Actsections 43(1) and (2)
  • Employment Actsection 45(2)(a), (b) and (c)
  • Employment Actsection 41(1)
  • Employment Actsection 51(1)
  • Employment Act 2007section 44(4)(a)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Walter Ogal Anuro vs Teachers Service Commission
    (2013) eKLR
  • George Okello Munyolo vs Unilever Kenya Limited
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act in respect of employment and labour relations disputes (Employment Act cited throughout)

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 Nyamanya Nyaundi v Perimeter Protection Limited [2022] KEELRC 391 (KLR)", Case Analysis (2022). Cause No 1002 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/391/eng@2022-03-31

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