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ELRCPartially AllowedCause No. 2060 of 2017· [2022] KEELRC 1192 (KLR)

Otwere v Bedrock Holding Limited (Cause 2060 of 2017) [2022] KEELRC 1192 (KLR)

Employment and Labour Relations Court
6 July 2022
3,084 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer cannot claim a worker deserted the job without proving it tried to reach them and held a fair hearing, awarding the guard Kshs.104,630.23.

What this practically means

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Executive summary

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By a statement of claim filed on October 16, 2017, the claimant, a security guard employed by the respondent, sued for unfair dismissal and non-payment of terminal dues, seeking a declaration that his dismissal was unlawful, payment of Kshs.264,215.03 (notice pay, house allowance, underpayment, annual leave, severance pay and 12 months' compensation), costs and interest. The respondent contended the claimant deserted duty in June 2017 after exhausting leave, and that it owed him nothing. The claimant testified that he was advised by his supervisor, Linnet, to stay home for two months on medical grounds and was later informed by Mr. Walter Odhiambo that he had been terminated. The respondent's witness, RW1, conceded the claimant was underpaid relative to the minimum wage, that no NSSF contributions were made, and that employees who deserted were not subjected to disciplinary hearings. The court framed two issues: whether the claimant was terminated or absconded duty, and whether he was entitled to the reliefs sought. Relying on the settled jurisprudence that an employer alleging desertion must demonstrate efforts to have the employee resume duty and accord a fair disciplinary process under section 41 of the Employment Act, the court found the respondent had not availed cogent evidence of desertion or fair termination. The court awarded notice pay, house allowance, underpayment, and two months' salary as compensation, but declined the annual leave claim for want of evidence. Judgment was entered for the claimant for Kshs.104,630.23 with costs and interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Whether the claimant was terminated or absconded duty

Holding

The court found that the respondent did not avail cogent evidence that the claimant absconded duty or was fairly terminated; the termination was neither substantively nor procedurally fair

Reasoning

The court adopted the settled position that an employer alleging desertion must demonstrate efforts to get the employee back to work and issue a notice to show cause. The claimant's testimony that he reported to the office on July 28, 2017 and was told to stay home by his supervisor was not controverted. The respondent's own witness confirmed that deserting employees were never subjected to disciplinary hearings, defeating any claim of procedural fairness.

p. 6
02

Entitlement to one month's salary in lieu of notice

Holding

Awarded as claimed because the respondent did not give notice of termination, justified under section 36 of the Employment Act

Reasoning

Since no notice of termination was issued to the claimant, the statutory protection under section 36 of the Employment Act entitled him to one month's salary in lieu of notice, which the court awarded as prayed.

p. 7
03

Entitlement to house allowance

Holding

Awarded at Kshs.33,500.415; house allowance is a statutory right and the consolidated salary clause was of no moment given underpayment

Reasoning

Section 31 of the Employment Act obliges the employer to provide housing or pay housing allowance. RW1's admission that he was unaware the minimum wage was exclusive of house allowance confirmed non-payment. The fact that the contract stated salary was consolidated did not assist a respondent that was underpaying the claimant, the only allowance factored in being overtime for 12-hour shifts.

p. 7
04

Underpayment claim

Holding

Awarded at Kshs.33,336.10; it was not in dispute that the claimant was paid below the statutory minimum wage for a watchman under the Regulation of Wages (General)(Amendment) Order, 2015

Reasoning

The applicable Wages Order fixed minimum pay for a day watchman at Kshs.10,954.70 and a night watchman at Kshs.12,221.10, exclusive of house allowance, effective May 2015. RW1 admitted that paying Kshs.10,050 amounted to underpayment, entitling the claimant to the difference.

p. 7
05

Compensation for unfair termination under section 49(1)(c)

Holding

The court awarded the equivalent of two months' salary (Kshs.25,195.81) rather than the 12 months sought, having regard to the short employment period and the absence of an appeal

Reasoning

In compliance with section 49(4) of the Employment Act, the court took into account that the claimant served only about 1 year and 9 months and did not appeal the termination, and was satisfied that two months' salary was a fair equivalent.

p. 7
06

Annual leave claim

Holding

Declined for lack of evidence

Reasoning

The claimant led no evidence on the annual leave claim; it was neither pleaded in the witness statement nor supported by oral testimony, so the prayer failed.

p. 7

Legal principles established

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  • An employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee to resume duty, at the very least by issuing a notice that termination on the ground of desertion is being considered
  • Even where an employee has absconded, the employee remains entitled to a fair disciplinary process under section 41 of the Employment Act before termination
  • A termination of employment must be both substantively justifiable and procedurally fair to pass muster
  • An employee is entitled to at least 15% of basic pay as housing allowance, which is a statutory right

Court orders

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  1. 1.Judgment is entered for the claimant against the respondent for the sum of Kshs.104,630.23
  2. 2.Award of one month salary in lieu of notice of Kshs.12,597.905 as claimed
  3. 3.Award of house allowance of Kshs.33,500.415
  4. 4.Award of Kshs.33,336.10 for underpayment
  5. 5.Award of the equivalent of two months' salary, Kshs.25,195.81, as compensation for unfair termination
  6. 6.Costs of the suit awarded to the claimant
  7. 7.Interest shall accrue at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsections 36, 41, 43, 45, 49(1)(c), 49(4), 31, 31(1)
  • Regulation of Wages (General)(Amendment) Order, 2015minimum wage for day and night watchmen effective May 1, 2015
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48

Cases cited (13)

  • David Nyanjui Mburu v Sunmatt Limited
    [2017] eKLR
  • Godfrey Anjere v Unique Suppliers Limited
    [2015] eKLR
  • David Gichana Omuya v Mombasa Maize Millers Ltd
    [2014] eKLR
  • Irungu Githae v Mutheka Farmers Cooperative Society Ltd
    [2019] eKLR
  • National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another
    [2001] eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Simon Mbithi Mbane v Inter Security Services Limited
    [2018] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Naima Khamis v Oxford University Press (E.A) Ltd
    [2017] eKLR
  • Judith Atieno Owuor v Sameer Agriculture and Livestock Limited
    [2020] eKLR
  • Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim of unfair termination and non-payment of terminal dues (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Otwere v Bedrock Holding Limited (Cause 2060 of 2017) [2022] KEELRC 1192 (KLR)", Case Analysis (2022). Cause No. 2060 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1192/eng@2022-07-06

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