John Ilayesa Likhalami v Lavington Security Limited [2022] KEELRC 763 (KLR)
The bottom line
#A Kenyan security guard unfairly dismissed over alleged desertion while on approved leave won Kshs. 298,725, minus salary wrongly paid after dismissal.
What this practically means
#Executive summary
#Key legal issues
#Procedural and substantive fairness of summary dismissal
Termination was procedurally and substantively unfair under Sections 41, 43 and 45 of the Employment Act
The dismissal letter was dated 6th September 2016, before the Claimant went on approved leave, and cited failure to resume duty, a reason the Court found irrational and untruthful. The Claimant resumed on 5th October 2016 and was dismissed on the spot without a hearing on the strike or desertion allegations. The Respondent gave a different reason than the true one (participation in a strike).
House allowance entitlement
Claimant entitled to house allowance of 15% of basic monthly wage over 40 months, Kshs. 63,000
The pay slips showed Kshs. 10,500 as basic pay, not consolidated pay. Regulation 5 of the Protective Security Services Order 1998 entitles an employee without employer-provided housing to house allowance of Kshs. 1,050 or 15% of basic monthly wage, whichever is higher. The Court allowed arrears limited to 40 months as pleaded.
Gratuity/service pay
Gratuity of 18 days' salary per year for 13 years granted at Kshs. 96,075
Regulation 17 of the Protective Security Services Order confers gratuity after 5 years' service at 18 days' salary per completed year, unaffected by N.S.S.F. subscription. The Claimant served 13 years from 2003 to 2016.
Counterclaim for erroneously paid salary
Counterclaim allowed; Claimant received Kshs. 36,663 for three months post-dismissal
Dismissal was on 6th September 2016 yet the Claimant received salary for October to December 2016. He did not acknowledge receipt as lawful but offered only that his bank account had money throughout. The Court was persuaded the payment was illegal and allowed the offset.
Legal principles established
#- An employer must accord an employee a hearing and give valid, truthful reasons for termination under Sections 41, 43 and 45 of the Employment Act
- An employee on approved leave cannot be faulted for failing to resume duty while on leave
- Security guards are entitled to gratuity under the Regulation of Wages [Protective Security Services] Order, 1998, unaffected by social security subscription
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay the Claimant arrears of house allowance at Kshs. 63,000; gratuity at Kshs. 96,075; compensation at Kshs. 127,575; and notice pay at Kshs. 12,075 – total Kshs. 298,725
- 3.Counterclaim allowed at Kshs. 36,663
- 4.Claim offset against the Counterclaim, to be paid at a total of Kshs. 262,062
- 5.No order on the costs
- 6.Interest at court rates from the date of Judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Ilayesa Likhalami v Lavington Security Limited [2022] KEELRC 763 (KLR)", Case Analysis (2022). Employment and Labour Relations Court Claim (Nairobi), decided 18th February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/763/eng@2022-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.