Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedAppeal (Kisumu) arising from Kisumu CM Employment Cause No. 223 of 2019· [2023] KEELRC 2817 (KLR)

Protective Custody Limited v Omukuba (Appeal E036 of 2021) [2023] KEELRC 2817 (KLR)

Employment and Labour Relations Court
9 November 2023
3,292 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
The Employment and Labour Relations Court at Kisumu (C. N. Baari, J) determined an appeal by Protective Custody Ltd and a cross-appeal by Tom Omunabi Omukuba against a judgment of the Chief Magistrate's Court in Kisumu CM Employment Cause No. 223 of 2019, which had found the respondent wrongfully terminated and awarded Kshs. 819,898.40. The employer contended the employee deserted duty and was not underpaid; the employee sought the full claim including house allowance, overtime, off-days, holidays and unremitted NSSF deductions. Applying the standard that a first appellate court must re-evaluate the evidence, the Court upheld the finding of unfair termination: the employer ran on verbal instructions, had no written contract, no reliable address for the employee, and no proof that the desertion and termination letters were sent or received. However, the Court set aside the global award of Kshs. 819,898.40 because the Trial Court failed to specify the heads of claim, amounts and basis. Re-assessing each remedy, the Court awarded underpayment of Kshs. 317,777.10 based on the applicable minimum wage orders, three months' salary (Kshs. 43,262.70) for unfair termination instead of the maximum twelve months, one month's pay in lieu of notice (Kshs. 14,420.90), and leave pay of Kshs. 57,683.60. Claims for house allowance, overtime, holiday allowance and unremitted NSSF deductions were dismissed. The trial court's costs were left undisturbed subject to assessment on the new award, and each party was ordered to bear their own costs of the appeal.

Key legal issues

#
01

Fairness of termination on account of alleged desertion

Holding

The termination was unfair; the employer failed to prove desertion or notification

Reasoning

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.

p. 5
02

Global award without breakdown

Holding

The global award of Kshs. 819,898.40 was set aside for lacking legal basis

Reasoning

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.

p. 6
03

Salary underpayment

Holding

The Respondent was underpaid; Kshs. 317,777.10 awarded per the applicable minimum wage orders

Reasoning

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.

p. 6
04

Compensation for unfair termination

Holding

Three months' salary awarded instead of the sought 12 months

Reasoning

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.

p. 6
05

Leave allowance

Holding

Leave pay of Kshs. 57,683.60 awarded as the employer failed to prove leave was taken

Reasoning

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.

p. 7

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. 1.Award of underpayment at Kshs. 317,777.10/-
  2. 2.Three months' salary for unfair termination (using Kshs. 14,420.90) at Kshs. 43,262.70/-
  3. 3.One-month salary in lieu of notice at Kshs. 14,420.90
  4. 4.Leave pay at Kshs. 57,683.60/-
  5. 5.The award of costs by the trial court left undisturbed, but to be assessed based on the award herein
  6. 6.Parties to bear their own costs of the appeal

Authorities

#

Legislation

  • Employment ActSection 31
  • Employment ActSections 10(7) and 74
  • Legal Notice No. 197Basic pay for security guards (Kshs. 5,218.00)
  • Legal Notice No. 116 of 2015Basic pay for security guards (Kshs. 5,844.00)
  • Regulation of Wages Order (Minimum Wage Regulations)Minimum wage for watchman, 2015 and 2017 revisions

Cases cited (7)

  • Mursal & Another v Manese (suing as the legal administrator of Dalphine Kanini Manesa)
    (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR)
  • Boniface Nkubi Karagania v Protective Custody Limited
    [2019] eKLR
  • Ragose Katana Chidyanga & Another v China Jiangxi International Kenya Limited
    (2018) eKLR
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Moi Teaching and Referral Hospital v James Kipkonga Kendagor
    [2019] eKLR
  • George Nyandiko v China Jiangxi International Kenya Limited
    [2016] eKLR
  • Simiyu v Nzoia Sugar Company Limited
    (Employment and Labour Relations Claim E005 of 2021) [2022] KEELRC 1758 (KLR)
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.