Mars Security Guards Limited v Kerauma (Civil Appeal E039 of 2022) [2023] KEELRC 2726 (KLR)
The bottom line
#A Kenyan employment court confirmed a security guard's leave and overtime awards, and ruled that claiming desertion requires proof the employer tried to contact the employee.
What this practically means
#Executive summary
#Key legal issues
#Annual leave entitlement
Pro-rata leave award for 8 months and 6 days of service upheld under Section 28(1)(b) of the Employment Act
The Appellant argued the Respondent, having served less than 12 months, was not entitled to leave pay. The court found the trial Magistrate's pro-rata award was well grounded in Section 28(1)(b) of the Employment Act and saw no reason to disturb it.
Paternity leave
Award of paternity leave reversed for want of application and documentary proof
Firm jurisprudence requires an employee claiming paternity leave to apply supported by documentary evidence such as notification of birth. No such documentary evidence was presented at trial, so the trial court had no basis for the award and it was reversed.
Overtime and contractual consolidation
Overtime award confirmed; consolidation clause was an attempt to contract outside the law
The contract clause purported to consolidate overtime compensation into the monthly salary. The court held this was an attempt to contract with employees outside the law and could not defeat the Respondent's legitimate claim for overtime compensation, so the trial award was confirmed.
Rest days
Award on rest days confirmed, being supported by the Appellant's own documents
The trial Magistrate applied Section 27(2) of the Employment Act, entitling an employee to at least one rest day per 7 days, found the claim supported by the muster roll produced by the Appellant, and computed 23 rest days at twice the normal rate. The appellate court found no reason to fault that exercise.
NSSF dues
Award reversed; outstanding dues payable to NSSF, not the employee
Even assuming the trial court was right that not all NSSF dues had been remitted, such dues belong to the statutory body. An award of unremitted contributions in favour of the employee was therefore wrong in principle and was set aside.
Desertion versus unfair termination
Trial court's finding of desertion set aside; unlawful and unfair termination found; 3 months' salary compensation and one month's notice pay awarded
An employer alleging desertion must demonstrate efforts to reach the employee and put them on notice of contemplated termination. The Appellant's witness had no evidence of such efforts. The trial court also relied on unproved allegations of robbery, thereby shifting the burden of disproving desertion to the Respondent, leaving the unfair termination claim unshaken.
Unpleaded minimum wage claim
Minimum wage underpayment could not be entertained on appeal as it was never pleaded
The cross appeal faulted the trial court for not applying the Regulation of Wages Order minimum wage, but the Respondent's Memorandum of Claim did not plead underpayment. A party cannot introduce on appeal an issue that was never raised at trial.
Legal principles established
#- An employer alleging desertion must show efforts to reach out to the employee and put them on notice that termination on that ground is under consideration
- An employee claiming paternity leave must make an application supported by documentary evidence such as notification of birth
- A contractual clause purporting to consolidate overtime pay cannot defeat an employee's statutory entitlement to overtime compensation
- Unremitted statutory deductions are payable to the statutory body, not to the individual employee
Court orders
#- 1.The award on leave pay is confirmed
- 2.The award on paternity leave is set aside
- 3.The award on overtime is confirmed
- 4.The award on rest days is confirmed
- 5.The award on NSSF dues is set aside
- 6.An award of Kshs. 45,000 being 3 months' salary in compensation is made in favour of the Respondent
- 7.An award of Kshs. 15,000 being 1 month's salary in lieu of notice is made in favour of the Respondent
- 8.Each party to bear their own costs
- On appeal from
- Chief Magistrate's Court at Milimani
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court employment claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mars Security Guards Limited v Kerauma (Civil Appeal E039 of 2022) [2023] KEELRC 2726 (KLR)", Case Analysis (2023). Civil Appeal No E039 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2726/eng@2023-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.