Adego v Alpha Logistics Services (EPZ) Limited (Cause 401 of 2018) [2023] KEELRC 1196 (KLR)
The bottom line
#A Kenyan court awarded a security guard compensation for unfair dismissal because his employer gave no notice and no hearing, but rejected vague overtime and underpayment claims.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was fair and lawful
Termination was unfair - no notice under section 35 and no hearing under section 41(1) of the Employment Act
The court found that due process requires notice under section 35 and a hearing under section 41(1) of the Employment Act before termination on grounds of misconduct, incapacity or poor performance. The respondent filed no response, called no evidence and produced nothing showing the claimant was taken through due process. Termination was therefore unfair, and the claimant, a protected employee, was entitled to notice pay and compensation.
Employment status and admitted employment despite no written contract
Employment was admitted through the respondent's own correspondence and conduct; weekly pay of Ksh. 4,200 removed the claimant from casual status, making him a protected employee under section 37
The claimant had no contract of service, but KMA correspondence and the respondent's letter of March 8, 2018 admitted employment in the security department. With no response filed and no employment records produced, the employment from 2010 to 2017 was not contested. The weekly wage took the claimant out of casual employment into protection under section 37 of the Act, with rights to notice pay, service pay and leave.
Quantum of remedies: notice pay, compensation, service pay, leave pay; and rejection of public holiday, overtime, underpayment and certificate compensation claims
Notice pay and one month's compensation at Ksh. 12,926.55 each, service pay of Ksh. 54,000 (15 days per year for 6 full years) and leave pay of Ksh. 75,600 awarded; generalised claims for public holidays, overtime and underpayment and the training certificate claim declined
Notice pay was computed at the general worker's minimum wage of Ksh. 12,926; compensation of one month at the same rate. Service pay at 15 days' pay per year for 6 full years at a daily wage of Ksh. 600 totalled Ksh. 54,000. Leave pay at 21 days per year for 6 years totalled Ksh. 75,600. The public holiday claim lacked particularisation of gazetted holidays; overtime was exaggerated and generalised; the underpayment claim failed for want of proof of applicability of the Association's wage schedules; and training costs were not claimable as the qualification was a precondition to employment.
Legal principles established
#- Before termination of employment can be fair, notice must issue under section 35 of the Employment Act and the employee must be given a hearing under section 41(1) - the due process of the law
- Where an employer fails to file a response and calls no evidence, the claimant's unchallenged evidence stands and the employment and its duration are not contested
- An employee paid a weekly wage is removed from the description of a casual employee and becomes protected under section 37 of the Employment Act with attendant rights and benefits
- Service pay is due where the employer fails to comply with section 35(5) and (6) of the Act, at 15 days' pay for every year worked
Court orders
#- 1.Judgment entered for the claimant against the respondent in the following terms: compensation Ksh. 12,926.55; notice pay Ksh. 12,926.55; leave pay Ksh. 75,600; service pay Ksh. 54,000
- 2.Costs of the suit awarded to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016 (as invoked in the cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adego v Alpha Logistics Services (EPZ) Limited (Cause 401 of 2018) [2023] KEELRC 1196 (KLR)", Case Analysis (2023). Cause No 401 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1196/eng@2023-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.