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ELRCPartially AllowedCause before the Employment and Labour Relations Court at Nakuru (memorandum of claim dated 10th September 2018)· [2023] KEELRC 3273 (KLR)

Anunda v Tiger Force Security Services Limited (Cause 73A of 2018) [2023] KEELRC 3273 (KLR)

Employment and Labour Relations Court
13 December 2023
DNDAVID NDERITU
5,589 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant sued the respondent, a security firm, alleging she was employed as a full-time guard from 1st September 2015 under an oral month-to-month contract (originally by Kikipeda Security Services, allegedly renamed the respondent), worked 6am to 6pm seven days a week without off-days, leave, house allowance, payslips or remittance of statutory deductions, and resigned effective 31st August 2018 after the respondent unilaterally converted her contract to casual one-day-per-week engagement and stopped paying her salary, amounting to constructive dismissal. The respondent denied ever employing her. The court framed five issues. It held that the claimant was an employee on a month-to-month contract: her pleaded case was supported by the respondent's reply to the demand letter admitting an engagement, and under Sections 10 and 74 of the Employment Act the burden lay on the employer to produce employment records, which it failed to do. The court found constructive dismissal arising from unilateral variation of terms and non-payment of salary, an unfair labour practice under Article 41. Relief: declarations of employment and constructive dismissal were granted; one month's notice pay, house allowance, leave pay and service pay were awarded; compensation under Section 49 was fixed at six months' gross pay. Refused: salary underpayment, rest days and public holiday claims for want of particulars and proof; Article 23(3)(e) constitutional compensation for failure to specifically plead violations; and remittance of statutory deductions since NSSF and NHIF were not joined. A certificate of service within 30 days, interest, and costs to the claimant were ordered.

Key legal issues

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01

Existence of employer-employee relationship

Holding

The court found the claimant was an employee of the respondent on a month to month contract from September 2015 to August 2018.

Reasoning

The claimant pleaded and orally testified to an oral month-to-month contract. Although she produced no payslips or bank records, the respondent's reply to the demand letter admitted offering her employment on casual terms. Sections 10 and 74 of the Employment Act oblige the employer to keep employment records; failing to avail them, the burden of proof fell on the respondent, which produced none. The employer-employee relationship was thus established.

p. 7
02

Constructive dismissal

Holding

The claimant was constructively dismissed by the respondent's unilateral change of contract terms from June 2018 and failure to pay monthly salary.

Reasoning

From June 2018 the respondent reduced her work to one day per week and failed to pay any salary, forcing her resignation on 31st August 2018. Failure to pay for labour supplied breaches the basic term of the contract and constitutes unfair labour practice amounting to constructive dismissal, following Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga. The respondent produced no records to disprove non-payment.

p. 7
03

Constitutional compensation under Articles 23(3)(e) and 43

Holding

Refused; constitutional violations must be specifically pleaded and proved, and the claim was not brought under Article 22.

Reasoning

Following Anarita Karimi Njeru and Mumo Matemu, allegations of constitutional violations must be specifically pleaded and proved. No specific pleading or evidence was adduced on violation of Article 43 economic and social rights. Further, Article 23 applies to proceedings under Article 22; this was an ordinary employment cause, and the contractual awards already made were adequate compensation.

p. 8
04

Compensation under Section 49(1)(c) of the Employment Act

Holding

Six months' gross pay awarded (Kshs.75,136.32) rather than the 12 months sought.

Reasoning

The court considered the Section 49(4) factors: no willingness to re-engage by either party, no contribution by the claimant to the dismissal, over three years of service, readiness to continue working, no terminal benefits paid, and the respondent's unfair, inconsiderate and dispassionate conduct in treating her with indignity and contempt.

p. 9

Legal principles established

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  • Where an employer fails to avail employment records it is legally obliged to keep under Sections 10 and 74 of the Employment Act, the court presumes the withheld evidence would be against the employer and the burden of proof shifts to the employer.
  • An employer who fails to avail work and pay salary subjects the employee to constructive dismissal amounting to unfair labour practice.
  • A certificate of service under Section 51 of the Employment Act is a right of every employee regardless of the circumstances of separation.

Court orders

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  1. 1.A declaration that the claimant was an employee of the respondent on a month to month contract
  2. 2.A declaration that by its conduct the respondent wrongfully, unfairly, and unlawfully (constructively) dismissed the claimant
  3. 3.Award of Kshs.230,256.32 made up of notice pay, house allowance in arrears, leave pay, service pay and 6 months' compensation, subject to statutory deductions
  4. 4.Interest on the award at court rates from the date of judgment till payment in full
  5. 5.Respondent to issue and deliver a certificate of service within 30 days of judgment
  6. 6.Costs of the cause and interest thereon to the claimant
  7. 7.All other reliefs denied and dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 41(1) & (2)(a) & (b), 43, 23(3)(e), 22
  • Employment ActSections 10, 49(1)(c), 49(4), 51, 74; definition of contract of service
  • Evidence ActSections 107 & 108

Cases cited (8)

  • Al Husnain Motors Ltd V Joshua Matagaro Michira
    (2021) eKLR
  • Coca Cola East & Central Africa Limited V Maria Kagai Ligaga
    (2015) eKLR
  • Netah Njoki Kamau & Another V Eliud Mburu Mwaniki
    (2021) eKLR
  • Casmur Nyankuru Nyaberi V Mwakikar Agencies Limited
    (2016) eKLR
  • Kenya Commercial Food & Allied Workers Union V Mwana Black Smith Limited
    (2013) eKLR
  • Anarita Karimi Njeru V Republic (No. 1)
    (1979) KLR 154
  • Mumo Matemu V Trusted Society of Human Rights Alliance
    (2014) eKLR
  • Rogoli Ole Manadiegi V General Cargo Services Limited
    (2016) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; Articles 41, 43 and 23 of the Constitution 2010 pleaded)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Anunda v Tiger Force Security Services Limited (Cause 73A of 2018) [2023] KEELRC 3273 (KLR)", Case Analysis (2023). Cause before the Employment and Labour Relations Court at Nakuru (memorandum of claim dated 10th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3273/eng@2023-12-13

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