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ELRCPartially AllowedAppeal No E089 of 2022· [2023] KEELRC 2300 (KLR)

Solvit Security Solutions Limited v Masase (Appeal E089 of 2022) [2023] KEELRC 2300 (KLR)

Employment and Labour Relations Court
21 September 2023
MMM. Mbarũ
2,187 words in judgment
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The bottom line

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A Kenyan court upheld that firing a guard for desertion was unfair because the employer never served him the notices, but cut his compensation to three months' pay.

What this practically means

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Executive summary

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The respondent, a night guard employed by the appellant at a monthly wage of Kshs. 11,500 from 2013, claimed terminal dues after exiting duty on 13 August 2020, alleging he was barred from resuming work over missing items and was not paid for July 2020. The appellant maintained the respondent stole client metals on 12 September 2020, deserted duty, and was lawfully terminated by notices dated 16 and 24 September 2020. The learned magistrate found unfair termination and awarded all claims. On appeal, the ELRC at Mombasa, applying its first-appeal duty to re-evaluate evidence, found the notices of desertion were never served and bore no forwarding address as required by Section 10(2) of the Employment Act, and the alleged theft had no police statement, so the finding of unfair termination could not be faulted. However, it held each claim should have been assessed on merits with reasons. It substituted the maximum 12-month compensation award with 3 months' gross wage (Kshs. 52,239), awarded notice pay at the prevailing Mombasa night-guard wage (Kshs. 17,412.95), leave pay for 31 days within the 18-month limit (Kshs. 15,645.70), underpayments of Kshs. 44,307 for 27 months, and house allowances of Kshs. 61,317, and directed a certificate of service under Section 51. The trial court's costs award, made without reasons, was set aside, with each party bearing its own costs.

Key legal issues

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01

Fairness of termination on grounds of desertion

Holding

Termination was unfair because the desertion notices were not served and bore no address for the respondent, denying him an opportunity to respond

Reasoning

The appellant alleged desertion and theft, but produced no police statement and its own human resource officer confirmed the notices were not acknowledged or served. Under Section 44(4)(a) the employer must prove issuance of notice and efforts to obtain the employee's representations. Notices lacking a forwarding address under Section 10(2)(a) have no probative value. The magistrate's finding of unfair termination could not be faulted.

p. 3
02

Assessment of compensation for unfair termination

Holding

The 12-month maximum award was set aside and substituted with 3 months' gross wage (Kshs. 52,239)

Reasoning

The maximum award requires stated reasons. Given the respondent's length of service from 2013 and the absence of any record of the alleged theft justifying exit, 3 months' gross wage was found sufficient compensation.

p. 4
03

Leave pay

Holding

The appellant's leave records were found doctored; 31 days of leave accrued within the 18-month window were awarded at Kshs. 15,645.70

Reasoning

Records submitted to show leave taken were generic, systematically written and approved by a single hand, and thus rejected as doctored for court purposes. Section 28(2) limits backdating of leave to 18 months, restricting the award to 31 days.

p. 5
04

Underpayments and house allowances

Holding

Underpayment of Kshs. 1,641 per month over 27 months (Kshs. 44,307) and house allowance at 15% (Kshs. 2,271 x 27 = Kshs. 61,317) awarded

Reasoning

The court accepted the respondent earned Kshs. 13,500 against the due basic wage of about Kshs. 15,141, computing the differential for 27 months and awarding house allowance separately at 15% for the same period.

p. 5
05

Costs

Holding

The trial court's costs award was set aside as it lacked reasons

Reasoning

Costs in employment matters are discretionary and not automatic; without reasons for allocating costs the award could not stand, and each party was ordered to bear its own costs.

p. 5

Legal principles established

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  • On a first appeal, the court must re-evaluate the evidence and arrive at its own conclusions
  • An employer who pleads desertion of duty must prove that the employee was issued with notice and given an opportunity to respond; notices without the employee's address have no probative value
  • Annual leave can only be claimed/backdated for up to 18 months
  • Costs in employment and labour relations matters are not automatic and must be justified
  • An award of 12 months' compensation must be supported by stated reasons

Court orders

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  1. 1.The judgment in Mombasa CMELRC No. E317 of 2021 is reviewed as follows: compensation Kshs. 52,239; notice pay Kshs. 17,412.95; leave pay Kshs. 15,645.70; underpayments Kshs. 44,307; house allowances Kshs. 61,317
  2. 2.A Certificate of service shall issue in terms of Section 51 of the Employment Act, 2007
  3. 3.Each party to bear own costs
  4. 4.The trial court's award of costs is set aside

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 44(4) and 44(4)(a)
  • Employment Act, 2007Section 10(2) and (3)
  • Employment Act, 2007Section 28 and 28(2)
  • Employment Act, 2007Section 51

Cases cited (3)

  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Joseph Nzioka v Smart Coating Limited
    [2017] eKLR
  • Kosgei v Metkei Multi-Purpose Company Limited
    Civil Appeal No. 95 of 2017
On appeal from
Mombasa Magistrates' Court (CMELRC)
Mombasa CMELRC No. E319 of 2021
Jurisdiction invoked
First appeal from the magistrates' court exercising Employment and Labour Relations jurisdiction (no express constitutional/statutory article quoted in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Solvit Security Solutions Limited v Masase (Appeal E089 of 2022) [2023] KEELRC 2300 (KLR)", Case Analysis (2023). Appeal No E089 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2300/eng@2023-09-21

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