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ELRCPartially AllowedStatement of Claim dated 26th April 2017 (Claimant's claim against the Respondent)· [2023] KEELRC 3420 (KLR)

Okutoyi v Eveready Security Guards Co. Limited (Cause 1699 of 2017) [2023] KEELRC 3420 (KLR)

Employment and Labour Relations Court
20 December 2023
5,561 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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Kenya's Employment Court ruled Eveready Guards unfairly fired a guard without a genuine hearing or valid reason, awarding him compensation and costs.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from 8th January 2011 at a monthly salary of Kshs. 12,270, alleged that his employment was unfairly terminated on 1st September 2016 through a forced early retirement. He sought a declaration of wrongful and unfair termination, unpaid dues, salary in lieu of notice, 12 months' compensation, and punitive damages. The Respondent contended that the Claimant was retired on account of old age and underperformance after repeated warnings and absenteeism following leave, that he received one month's notice and all terminal dues, and that his salary was consolidated. The court found the termination procedurally unfair: no notice to show cause was issued, the purported disciplinary hearing held on the day the Claimant resumed from leave was a sham, and the minutes did not show that accusations were put to him or that he made representations. Substantively, the absenteeism ground had already been punished by forfeiture of two days' salary, amounting to double jeopardy and bad faith. The backdated retirement notice was shorter than that required by section 35(1), effectively a summary dismissal. The court declared the termination procedurally and substantively unfair and awarded salary in lieu of notice (Kshs. 12,270), compensation for unfair termination (six months' salary, Kshs. 73,620, per the final orders), prorated leave (Kshs. 3,272) and uniform deposit refund (Kshs. 3,000), with interest and costs to the Claimant. Claims for house allowance, overtime, off days, public holidays, service pay and punitive damages failed for want of proof.

Key legal issues

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01

Procedural fairness under section 41 of the Employment Act

Holding

The termination was procedurally unfair; the Claimant was not notified of the grounds, given a notice to show cause, or accorded a genuine hearing; the minutes of the purported disciplinary hearing were a sham

Reasoning

Section 41 requires notification of grounds, an opportunity to make representations (with accompaniment), and consideration of those representations. The Respondent's witness admitted no notice to show cause was issued and could not explain how the hearing invitation was extended. The minutes did not show accusations put to the Claimant, representations made, his signature, or accompaniment by a colleague. The hearing purportedly took place on the same day the Claimant resumed from leave and was punished for the same absence, indicating bad faith.

p. 8
02

Substantive justification under sections 43 and 45 of the Employment Act

Holding

The termination lacked substantive justification; the ground of absenteeism was already punished by forfeiture of two days' salary, and the real reason (age/underperformance) did not appear in the termination notice

Reasoning

The Respondent's stated ground was absenteeism after leave, but the Claimant had explained the extension of leave by the death of his step-mother and had already been punished by losing two days' salary. Disciplining him again for the same conduct amounted to double jeopardy and bad faith. RW1 admitted the termination notice did not mention the alleged underperformance. The employer failed to prove a valid and fair reason.

p. 9
03

Salary in lieu of notice

Holding

The retirement notice dated 11th August 2016 taking effect from 1st August 2016 was backdated and shorter than the notice required by section 35(1), effectively rendering the exit a summary dismissal; one month's salary in lieu of notice awarded

Reasoning

The notice issued to the Claimant was dated 11th August 2016 yet took effect from 1st August 2016, an unexplained backdating that made the notice period less than a month. The Respondent failed to explain the discrepancy. Under section 35(1) the notice did not conform with the law, making the separation a summary dismissal, justifying payment in lieu of notice.

p. 9
04

Compensation for unfair termination under section 49(1)(c)

Holding

Compensatory relief awarded (10 months' salary in the analysis, but 6 months' salary in the final orders) considering the procedural and substantive unfairness, the sham hearing, double jeopardy and diminished employment prospects

Reasoning

The court considered the Claimant's procedural and substantive unfairness, the sham disciplinary hearing, the double jeopardy suffered and his inability to secure other employment, and exercised its discretion under section 49(1)(c). The analysis indicated 10 months' gross salary (Kshs. 122,700) but the final orders granted 6 months (Kshs. 73,620), an internal inconsistency.

p. 9
05

Burden of proof on overtime and house allowance claims

Holding

The employee bears the burden of proving overtime worked; consolidated salary as reflected in payslips defeats a separate house allowance claim

Reasoning

The Claimant pleaded overtime of Kshs. 113,865.60 but produced no evidence of how the figures were calculated or that he worked hours beyond the agreed 6.00 a.m. to 6.00 p.m. span. The payslips clearly showed a consolidated salary inclusive of house allowance, and section 31(2) contemplates such consolidation.

p. 10

Legal principles established

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  • For a termination to be fair it must be both substantively justified and procedurally fair; absence of either vitiates the termination
  • The burden of proving fair procedure and valid reasons for termination rests on the employer
  • The employer bears the burden of justifying the grounds for termination, and failure to discharge the first burden makes the second impossible

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was both procedurally and substantively unfair
  2. 2.One month's salary in lieu of notice of Kshs. 12,270
  3. 3.Six months' gross salary as compensation for unfair termination under section 49(1)(c) of the Employment Act, Kshs. 73,620
  4. 4.Prorated compensation for unutilized leave days of KShs. 3,272.00
  5. 5.Refund of uniform deposit of Kshs. 3,000.00
  6. 6.Costs of the suit to the Claimant
  7. 7.Interest on the awarded sums at court rates from the date of judgment until full payment

Authorities

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Legislation

  • Employment Actsections 45[2], 43, 43[3], 47[5], 41, 35, 35[1], 49[1][c], 31(1), 31(2)
  • Regulation of Wages [Protective Security Services] Order1998
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Civil Procedure ActSection 1B
  • Sacco Actreferred to re deductions

Cases cited (11)

  • Pius Machafu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
  • Walter Anuro vs the Teachers Service Commission
    [2013] eKLR
  • Republic vs The Principal Secretary Ministry of Mining Ex-Parte Airbus Helicopters Southern Africa [PTY] Ltd
    [2017]
  • Sylivester Odhiambo Nyakanga vs Kenya Plantation & Agricultural Workers Union & 3 others
    [2019] eKLR
  • Patrick Lumumba Kimuyu vs Prime Fuels [K] Limited
    [2018] eKLR
  • Hassanath Wanjiku vs Vanela House of Cofiee
    [2018] eKLR
  • Javan Were Mbango vs H. Young & CO [EA] Ltd
    [2012] eKLR
  • Walter Anuro Ogal vs Teachers Service Commission
    [2013] eKLR
  • Janet Nyandiko versus Kenya Commercial Bank Limited
    [2017] eKLR
  • Rogoli Ole Manadiegi vs General Cargo Services Ltd
    [2016] eKLR
  • Rookes vs Bernard
    [1964] 1 ALL ER 367
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims under Article 162(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okutoyi v Eveready Security Guards Co. Limited (Cause 1699 of 2017) [2023] KEELRC 3420 (KLR)", Case Analysis (2023). Statement of Claim dated 26th April 2017 (Claimant's claim against the Respondent). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3420/eng@2023-12-20

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