Ng’ang’a v Robinson Investment Ltd T/A Robinson Security Guards (Employment and Labour Relations Cause 169 of 2016) [2022] KEELRC 4106 (KLR)
The bottom line
#A Kenyan court ruled firing a worker over one week's absence without notice or a hearing was unfair, awarding her 12 months' pay.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The claimant was a guardette employed from October 6, 2006, not a casual worker or formally a clerk; she was directed to perform clerical duties on need basis
The court relied on the application letter endorsed with appointment as guardette at Kshs 2,500/month. RW1's casual-worker allegation was unsupported and contradicted written evidence under sections 97 and 98 of the Evidence Act. Although leave forms showed her as clerk/acting secretary, no promotion letter existed, so the court went by the documentary evidence of the guardette position.
Fairness of the termination
The dismissal was unreasonable, unfair and unlawful; the claimant did not desert duty
The claimant overstayed her leave by about one week. No desertion notice was served and no efforts to trace her were shown. Termination for one week's absence without notice, hearing or reasons breached sections 35, 41 and 43 of the Employment Act; a warning or lesser measure would have sufficed. The respondent failed to prove desertion without intention to resume, per Radido J in Philomena Kiprotich Kirui v Lesos Veterinary Suppliers Ltd.
Burden of proof on claims for unpaid leave, overtime, holidays and maternity pay
Claims denied because the claimant failed to discharge the burden of proof under sections 107, 108 and 109 of the Evidence Act
While sections 10 and 74 of the Employment Act oblige employers to keep records, they do not require automatic production in court. The claimant produced no payslips, M-Pesa or bank statements and did not seek a notice to produce or summons. The presumption that unproduced records would be adverse to the employer was not treated as displacing the statutory burden on the party alleging.
Compensation under section 49(1)(c)
Maximum 12 months' gross salary awarded as compensation, computed on the last gross salary of Kshs 10,925
The court applied section 49(4) factors: the claimant did not secure other employment, was denied a hearing, and the dismissal for one week's absence was excessive, illogical and unreasonable; the respondent also failed to pay terminal dues voluntarily. Gross salary included 15% house allowance: Kshs 9,500 + 15% = Kshs 10,925, multiplied by 12 to give Kshs 131,100, subject to statutory deductions.
Legal principles established
#- An employer's allegation that an employee was a casual worker cannot contradict or override written documentary evidence of appointment
- Termination for absence of about one week without notice, hearing, or reasons breaches sections 35, 41 and 43 of the Employment Act and is excessive and unreasonable
- The employer's duty to keep employment records under sections 10 and 74 of the Employment Act does not oblige it to suo motu produce them in court; the claimant must prove non-payment or use notice to produce
- Gratuity is not a right and is paid voluntarily or where provided for in the contract
Court orders
#- 1.A declaration that the dismissal of the claimant by the respondent was unreasonable, unfair, and unlawful
- 2.One month's gross salary in lieu of notice of Kshs 10,925.00
- 3.Compensation for unfair and unlawful termination of Kshs 131,100.00 (total Kshs 142,025.00, subject to statutory deductions)
- 4.Respondent to issue and deliver a certificate of service to the claimant within 30 days of the judgment
- 5.Costs of the cause to the claimant
- 6.All other reliefs not specifically awarded denied and dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’ang’a v Robinson Investment Ltd T/A Robinson Security Guards (Employment and Labour Relations Cause 169 of 2016) [2022] KEELRC 4106 (KLR)", Case Analysis (2022). Memorandum of Claim dated May 10, 2016 (ELRC cause, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4106/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.