Protective Custody Limited v Omukuba (Appeal E036 of 2021) [2023] KEELRC 2817 (KLR)
The bottom line
#A Kenyan court cut a security guard's award but still held his employer liable for unfair termination and years of pay below the legal minimum wage.
What this practically means
#Executive summary
#Key legal issues
#Fairness of termination on account of alleged desertion
The termination was unfair; the employer failed to prove desertion or notification
The employer operated through verbal instructions, had no written contract, no verified postal address, and produced no proof that the desertion or termination letters were sent or received. An employer asserting desertion must demonstrate efforts to reach the employee before termination on that ground.
Global award without breakdown
The global award of Kshs. 819,898.40 was set aside for lacking legal basis
The Trial Court made a global award without specifying the heads of claim, amounts, or basis, making it impossible to discern how the decretal sum was reached. The appellate court set it aside and proceeded to assess each remedy independently.
Salary underpayment
The Respondent was underpaid; Kshs. 317,777.10 awarded per the applicable minimum wage orders
Bank statements showed employment from January 2015 to April 2019. Applying the Regulation of Wages Order rates of Kshs. 10,954.70 (2015) and Kshs. 14,420.90 (2017) against actual pay yielded underpayment of Kshs. 317,777.10.
Compensation for unfair termination
Three months' salary awarded instead of the sought 12 months
The Respondent did not report the dispute to the labour office until June 2019 and received no salary after 25 April 2019 without reaction, conduct inconsistent with continued employment. Maximum compensation requires justification.
Leave allowance
Leave pay of Kshs. 57,683.60 awarded as the employer failed to prove leave was taken
Under Sections 10(7) and 74 of the Employment Act, the employer must keep and produce employment records including leave records; failing production, the burden is on the employer to prove the employee took leave.
Legal principles established
#- A first appellate court must re-evaluate the evidence and arrive at its own independent judgment
- An employer alleging desertion must demonstrate efforts to trace the employee and put them on notice of contemplated termination
- A court awarding damages must specify each head of claim, the amount and the basis of the award
- Maximum compensation of 12 months' salary cannot be awarded without justification
- The burden of proving an employee took leave lies on the employer who must keep employment records
Court orders
#- 1.Award of underpayment at Kshs. 317,777.10/-
- 2.Three months' salary for unfair termination (using Kshs. 14,420.90) at Kshs. 43,262.70/-
- 3.One-month salary in lieu of notice at Kshs. 14,420.90
- 4.Leave pay at Kshs. 57,683.60/-
- 5.The award of costs by the trial court left undisturbed, but to be assessed based on the award herein
- 6.Parties to bear their own costs of the appeal
- On appeal from
- Chief Magistrate's Court, Kisumu
- Kisumu CM Employment Cause No. 223 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's employment cause (Employment and Labour Relations Court); cross-appeal filed with leave of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Protective Custody Limited v Omukuba (Appeal E036 of 2021) [2023] KEELRC 2817 (KLR)", Case Analysis (2023). Appeal (Kisumu) arising from Kisumu CM Employment Cause No. 223 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2817/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.