Isabwa v Kenya Kazi Services Limited (Cause 637 of 2017) [2023] KEELRC 1658 (KLR)
The bottom line
#A Kenyan court awarded a security guard over Kshs 350,000 because his employer fired him without notice or a hearing and produced no records proving desertion.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant deserted work or was unlawfully and unfairly summarily dismissed
The claimant's testimony that he was granted three days' off, kept on standby and sent home by the Operations Manager was truthful and unrebutted; the desertion allegation failed and the summary dismissal was unlawful and unfair.
The claimant served for eleven years without adverse record. He obtained a dispatch note from field officer Njeru for three days' off following a fire at his house, returned on February 9, 2015 and was on standby until sent home on February 16, 2015. RW1, who joined the respondent after the dismissal, adduced no credible rebutting evidence and admitted no due process was followed and no records existed of the respondent contacting the claimant. The letter of February 18, 2015 was backdated and delivered on April 14, 2015, an attempt to sanitise an otherwise unlawful dismissal.
Entitlement to reliefs including compensation under section 49 of the Employment Act
The claimant was entitled to terminal benefits proved and to compensation of ten months' salary under sections 49(1)(c) and (4) of the Employment Act, 2007.
The dismissal was wrongful and the claimant did not contribute to it. He rendered unblemished service, was unfairly victimized, lost his livelihood without notice, and had just lost his house to fire with no empathy shown by the respondent. No terminal benefits were paid. Relying on Andrew Ondieki v DHL Supply Chain Limited, the court granted the equivalent of ten months' salary, plus notice pay, severance pay at 18 days' salary per year under the security service order, interest and costs.
Legal principles established
#- A summary dismissal without notice, notice to show cause or a hearing violates sections 36, 41, 43 and 45 of the Employment Act and is unlawful and unfair.
- A backdated dismissal letter cannot cure the absence of due process before summary dismissal.
- An employer alleging desertion must produce documentation or records showing it contacted or notified the employee; unsupported allegations do not rebut credible testimony.
Court orders
#- 1.Kshs 199,670 in compensation for unlawful and unfair termination (10 months' salary).
- 2.Kshs 19,967 one month's salary in lieu of notice.
- 3.Kshs 131,769 service gratuity payable to the security cadre for every completed year of service; total award Kshs 351,406.
- 4.Interest at court rates from date of judgment till payment in full.
- 5.Costs of the suit to the claimant.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; suit for unfair termination under sections 45 and 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isabwa v Kenya Kazi Services Limited (Cause 637 of 2017) [2023] KEELRC 1658 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1658/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.