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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 1730 (KLR)

Momanyi v Factory Guards (MSA) Limited & another (Cause 367 of 2017) [2023] KEELRC 1730 (KLR)

Employment and Labour Relations Court of Kenya
29 June 2023
1,360 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed as a security guard from 2008, sued the respondents claiming accrued annual leave, public holidays, house allowances, overtime, severance pay, three months' notice pay, a certificate of service and compensation for unfair termination following termination of his employment on medical grounds on 15 September 2015 after about 120 days' sick leave for mental illness. The respondents asserted they were one and the same company, that termination on medical grounds carried an option to resume work if his health improved, that the claimant opted to resign on 18 September 2015, and that his tabulated terminal dues of Kshs. 466,846.20 were to be paid in instalments, of which Kshs. 100,000 was allegedly paid into a Cooperative Bank account. The court took issue with the respondents filing the claimant's confidential medical records, holding that human dignity under Article 28 of the Constitution is absolute and inviolable and that disclosure of medical records is part of the dignity of the person requiring protection. On the merits, the court adopted the respondents' tabulation of terminal dues, applying the statutory 21 days' annual leave, the house allowance as tabulated, the employer's records on overtime and public holidays, and service pay for 7 years in place of severance pay, which does not arise on medical retirement. Notice pay was refused as the claimant was issued notice and opted to resign. The court held the respondents should have facilitated supported decision-making rather than relying only on family consultations, and that the claimant should not have been forced to sue for his dues held since 2015. The court ordered payment of Kshs. 466,846.20 within 30 days, failing which interest would run from 15 September 2015 until payment in full, with each party bearing own costs.

Key legal issues

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01

Unfair termination on medical grounds

Holding

The court did not award compensation for unfair termination; it focused on the unpaid tabulated dues, noting the respondents unilaterally terminated employment on medical grounds and held the dues for over 8 years

Reasoning

The claimant was issued notice of termination on medical grounds with an option to resume if his health improved, but opted to resign. The court questioned whether his choice was informed and free, given his mental health, and held it was not sufficient that only family members were consulted; a supported decision-making process should have been used. The court did not make an express finding of unfair termination but ordered payment of tabulated dues with interest.

p. 3
02

Terminal dues tabulation

Holding

The respondents' tabulation of Ksh. 466,846.20 was adopted as correct, covering house allowance, accrued leave, service pay, overtime and public holidays

Reasoning

The claimant underwent clearance and his dues were tabulated by the respondents. The court found the statutory rate of 21 days' annual leave per year applicable, the house allowance correctly allocated based on wages paid, and the employer's records of overtime and public holidays taken as true. Service pay for 7 years was allocated in lieu of severance pay.

p. 3
03

Confidentiality of medical records

Holding

Medical records filed in evidence should have remained confidential and secured; counsel should have sought protective orders under Article 28

Reasoning

The respondents filed the claimant's medical records disclosing his mental health status. The court observed that medical records should remain confidential and secured, and that the claimant's counsel ought to have applied for protection of the claimant and securing of the data. Disclosure of medical records is part of the dignity of the person protected under Article 28 of the Constitution.

p. 2

Legal principles established

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  • Human dignity is absolute and inviolable; disclosure of medical records is part of the dignity of the person and should remain protected
  • The record of overtime due and owing is the record of the employer and should be applied as true
  • A claim for work on public holidays should not be general; absent the employee's proper record, the employer's record applies

Court orders

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  1. 1.The respondents' tabulated terminal dues of Ksh. 466,846.20 shall be paid within 30 days
  2. 2.Failure to pay within 30 days attracts interest from 15 September 2015 until payment in full
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 28
Jurisdiction invoked
Employment and labour relations jurisdiction; Article 28 of the Constitution of Kenya invoked on dignity

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Momanyi v Factory Guards (MSA) Limited & another (Cause 367 of 2017) [2023] KEELRC 1730 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1730/eng@2023-06-29

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