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ELRCPartially AllowedCause No 522 of 2017· [2024] KEELRC 140 (KLR)

Wanjala v Gillys Security and Investigation Services Limited (Cause 522 of 2017) [2024] KEELRC 140 (KLR)

Employment and Labour Relations Court
6 February 2024
2,240 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed as a night guard by the Respondent security firm from July 2011, sued for underpayment, leave days, public holidays, overtime and unremitted NSSF deductions after his employment ended in February/March 2016. The Respondent admitted employing him but denied owing dues and counter-claimed one month's salary for allegedly absconding duty. The Respondent did not file a witness statement and gave no oral evidence; its case was closed after repeated adjournment requests, and it filed no submissions. The court first found an employment relationship established by the pleadings and documentary evidence. It held that the Claimant did not abscond: the Respondent produced no evidence of desertion, no notice to show cause, and never notified the Labour Officer. The Claimant's letter of 2nd March 2016 declining redeployment and requesting his dues was a valid resignation, effective without acceptance. On the dues, the court awarded underpayment of Kshs.214,256.54 for three years computed against the prescribed minimum wage plus 15% house allowance, and Kshs.600 in unremitted NSSF deductions (claims for 2011 and 2012 being time-barred under Section 90 of the Employment Act). Leave, public holiday and overtime claims failed for want of particulars and proof. On the counter-claim, the Respondent was awarded one month's salary in lieu of notice (Kshs.14,054.27) for the Claimant's failure to give the requisite notice, set off against the Claimant's award, leaving Kshs.200,202.27 plus Kshs.600 with interest at court rates. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant resigned or absconded duty

Holding

The Claimant resigned; he did not abscond duty.

Reasoning

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.

p. 4
02

Entitlement to underpayment

Holding

Claimant underpaid relative to prescribed minimum wage; awarded Kshs.214,256.54 for three years.

Reasoning

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.

p. 4
03

Entitlement to leave days, public holidays and overtime

Holding

All declined for want of particulars and proof.

Reasoning

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.

p. 5
04

Unremitted NSSF deductions

Holding

Awarded Kshs.600/= only, being deductions after February 2013; 2011-2012 claims time-barred.

Reasoning

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.

p. 6
05

Respondent's counter-claim

Holding

Counter-claim merited; Respondent awarded one month's salary in lieu of notice (Kshs.14,054.27), set off against the Claimant's award.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Unremitted NSSF deductions of Kshs.600/= awarded to the Claimant
  3. 3.Interest at court rates from date of judgment till payment in full
  4. 4.Respondent awarded one month's salary in lieu of notice of Kshs.14,054.27, set off against the Claimant's award
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 38
  • Employment Act, 2007Sections 28 and 74(1)(f)
  • Employment ActSection 48 (Wage Order)
  • Employment ActSection 90
  • Regulation of Wages (General) (Amendment) OrdersPrescribed minimum wages
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (12)

  • Kennedy Obala Oaga V Kenya Ports Authority
    (2018) eKLR
  • Owade V Chandaria Industries Ltd
    2021 KEELRC
  • Sheila Kasiti Matsyi V Mwikali Solo
    (2021) eKLR
  • Justus Atulo Ashioya V 'A' Team Security Ltd
    (2014) eKLR
  • Abigael Jepkosgei Yator & another V China Hanan International Co. Ltd
    (2018) eKLR
  • Patrick Lumumba Kimuyu V Prime Fuels Ltd
    (2018) eKLR
  • Samuel Ndungu Mburu V Midview Hotel Mombasa
    (2013) eKLR
  • Morris Kavale Kasyoki V Narcol Aluminium Rolling Mills Ltd
    (2014) eKLR
  • Monica Kanini Mutua V Al-Arafat Shopping Centre & another
    (2018) eKLR
  • Humphrey Munyithia Mutemi V Soluxe International Group of Hotels & Lodges Ltd
    (2020) eKLR
  • Nicholus Kipkemoi Korir V Hatari Security Guards Ltd
    (2016) eKLR
  • Edwin Beiti Kipchumba V National Bank of Kenya Ltd
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.