Wanjala v Gillys Security and Investigation Services Limited (Cause 522 of 2017) [2024] KEELRC 140 (KLR)
The bottom line
#A Kenyan court ruled a guard resigned rather than absconded, awarding him unpaid minimum wage arrears while punishing his failure to give notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant resigned or absconded duty
The Claimant resigned; he did not abscond duty.
The Respondent tendered no evidence of desertion, issued no notice to show cause and did not notify the Labour Officer. Its letter of 29th February 2016 informed the Claimant of redeployment, and his reply of 2nd March 2016 declined further extension of his contract and requested his dues, which the court held was a resignation notice effective without acceptance.
Entitlement to underpayment
Claimant underpaid relative to prescribed minimum wage; awarded Kshs.214,256.54 for three years.
Bank statements showed salary below the minimum wage prescribed under the relevant Regulation of Wages (General) (Amendment) Orders, with 15% house allowance added. Underpayment computed for March 2013 to February 2016.
Entitlement to leave days, public holidays and overtime
All declined for want of particulars and proof.
The written statement made no reference to leave particulars; no specific public holidays on which the Claimant worked were identified; and no evidence of extra hours worked or overtime claims made and denied. The burden of proof lay on the employee.
Unremitted NSSF deductions
Awarded Kshs.600/= only, being deductions after February 2013; 2011-2012 claims time-barred.
Payslips showed monthly deductions of Kshs.200 for NSSF remission. Section 90 of the Employment Act bars recovery of deductions for 2011 and 2012, leaving only three months' deductions recoverable.
Respondent's counter-claim
Counter-claim merited; Respondent awarded one month's salary in lieu of notice (Kshs.14,054.27), set off against the Claimant's award.
Although the Respondent adduced no oral evidence, the resignation letter showed the Claimant did not give the requisite one month's notice, and the alleged waiver was not proved.
Legal principles established
#- Resignation is a unilateral act by the employee that terminates the employment relationship and requires no acceptance to be effective
- In undefended suits the employee must first establish the existence of an employment relationship before establishing other facts
- An employee who resigns without giving the requisite notice is liable to pay salary in lieu of notice
- NSSF deduction claims are subject to the three-year limitation period under Section 90 of the Employment Act
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent for underpayment of Kshs.214,256.54 less Kshs.14,054.27 = Kshs.200,202.27
- 2.Unremitted NSSF deductions of Kshs.600/= awarded to the Claimant
- 3.Interest at court rates from date of judgment till payment in full
- 4.Respondent awarded one month's salary in lieu of notice of Kshs.14,054.27, set off against the Claimant's award
- 5.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nzue & 3 others v Riverbank Solutions Ltd (Cause E543 of 2022) [2024] KEELRC 1842 (KLR)[2024] KEELRC 1842 (KLR)12 Jul 2024
Cite this brief
#Cite this brief
Caselaw, "Wanjala v Gillys Security and Investigation Services Limited (Cause 522 of 2017) [2024] KEELRC 140 (KLR)", Case Analysis (2024). Cause No 522 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/140/eng@2024-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.