Adika v Security 24 Limited & another (Appeal E048 of 2023) [2024] KEELRC 14 (KLR)
The bottom line
#A Kenyan court awarded a night guard nearly Kshs 927,083 after ruling his dismissal was unfair, confirming employers can't avoid liability by skipping written contracts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appellant established an employment relationship with the Respondents
- 2.Whether the Appellant's employment was unfairly terminated
- 3.Whether the Appellant is entitled to compensation, pay in lieu of notice, underpayments, leave allowance, overtime and rest days claims
- 4.Whether the Appellant is entitled to a Certificate of Service
Key legal issues
#Proof of employment relationship
The trial magistrate erred in fact and law in finding that no employment relationship was proved; uncontroverted oral testimony and an occurrence book extract established the relationship
Section 9 of the Employment Act obliges an employer to reduce contracts exceeding 3 months into writing. Where primary evidence is lacking, secondary records such as NSSF or NHIF records may be relied on. Under section 10(7), the burden falls on the employer to disprove alleged terms. Here the Appellant's sworn testimony and the occurrence book extract were uncontroverted because the Respondents did not participate, permitting an inference of employment which the trial court failed to consider.
Unfair termination
The Appellant's employment was unfairly terminated contrary to sections 35(1)(c) and 41 of the Employment Act
The Appellant testified that his employment was terminated without notice or disciplinary process in December 2022. The Respondents did not participate in the proceedings, so the testimony remained unchallenged. Sections 35(1)(c) and 41 of the Employment Act require notice and disciplinary process, and their absence rendered the termination unfair. Compensation of 3 months' salary and one month's pay in lieu of notice were awarded considering about 2 years of service.
Overtime for security guards
Judicial notice taken that security guards work 12-hour shifts; the Appellant's unchallenged testimony established 4 hours' overtime daily and the claim was allowed
The Court took judicial notice of the notorious fact that security guards in Kenya work 12-hour shifts while the Regulation of Wages (Protective Security Services) Order, 1998 provides for 52 hours spread over 6 days. The Appellant's unchallenged testimony that he worked from 6.00 pm to 6.00 am meant he worked 4 hours of overtime daily, justifying the award of Kshs 570,082/-.
Underpayments against prescribed minimum wage
The claim for underpayments of the prescribed minimum salary and house allowance was allowed on the basis of the record
The Appellant pleaded and testified that he earned Kshs 9,400/- per month while the prescribed minimum wage for a security guard was Kshs 15,141/- exclusive of house allowance, and Kshs 16,959/- from May 2022. Since this evidence was unchallenged, the Court allowed the underpayments claim of Kshs 289,165/-.
Legal principles established
#- The contract document is the primary evidence of the existence of an employment relationship; where it is lacking, secondary records such as NSSF or NHIF records may be relied upon
- Where an employer fails to reduce a contract into writing, section 10(7) of the Employment Act places the burden on the employer to disprove the alleged terms
- Unchallenged oral testimony and documentary exhibits may support an inference of an employment relationship
- On first appeal, the court must re-evaluate the evidence, assess it and reach its own conclusions, making due allowance for not having seen or heard the witnesses
Court orders
#- 1.The judgment by the Principal Magistrate is set aside and substituted with judgment finding and declaring the termination of the Appellant's employment was unfair
- 2.Compensation of Kshs 50,877/- awarded
- 3.Pay in lieu of notice of Kshs 16,959/- awarded
- 4.Underpayments of Kshs 289,165/- awarded
- 5.Overtime of Kshs 570,082/- awarded (total award Kshs 927,083/-)
- 6.Respondents to issue a Certificate of Service to the Appellant within 30 days
- 7.Appellant to have costs of the Appeal and before the Principal Magistrate's Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate, Winam
- Jurisdiction invoked
- First appellate jurisdiction over the Senior Principal Magistrate's Court in an employment cause (Employment and Labour Relations Court Act; appeal against dismissal of unfair termination and breach of contract claim)
Relief refused
#Leave allowance of Kshs 58,508/-
No contractual, evidential or legal foundation laid for the claim
Rest days claim
No evidential basis placed before the trial Court
Costs
The Appellant to have costs of the Appeal and before the Principal Magistrates Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court sets aside the judgment by the Principal Magistrate and substitutes it with judgment finding and declaring the termination of the Appellant’s employment was unfair.
The Respondents to issue a Certificate of Service to the Appellant within 30 days.
The Appellant to have costs of the Appeal and before the Principal Magistrates Court.
The contract document, therefore, is the primary evidence of the existence of an employment relationship.
section 10(7) of the Employment Act, 2007 places a burden on the employer to disprove the alleged terms of the contract.
it was the duty of the Court…. To re-evaluate the evidence, assess it and reach its own conclusions remembering that it had neither seen nor heard the witnesses and hence making due allowance for that.
A Certificate of Service is a statutory entitlement and the Respondents should issue one to the Appellant within 30 days of this judgment.
Issues in the judgment
#Judgment alternatively refers to the trial magistrate as Senior Principal Magistrate and Principal Magistrate, and the appeal case number is not stated on the face of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adika v Security 24 Limited & another (Appeal E048 of 2023) [2024] KEELRC 14 (KLR)", Case Analysis (2024). Memorandum of Appeal filed 18 August 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/14/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.