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ELRCPartially Allowed· [2024] KEELRC 206 (KLR)

Bishar & 3 others v World Assembly of Muslim Youth (WAMY) EA & 3 others (Employment and Labour Relations Cause E002 of 2023) [2024] KEELRC 206 (KLR)

Employment and Labour Relations Court
16 February 2024
OMOnesmus N Makau
2,181 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 that firing watchmen over theft accusations without a disciplinary hearing or proof was unfair, awarding them salary arrears and compensation.

What this practically means

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Executive summary

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Two claimants, employed as night watchmen from 2007 and 2013 at a monthly salary of Kshs. 6,000, sued after their services were terminated on 4th August 2021 following accusations of theft of food stocks. They alleged they were arrested on 18th May 2021, arraigned in court, told to stay away from work pending the criminal case, and never paid salaries for May to August 2021; termination letters were issued without any disciplinary hearing. The respondents did not enter appearance or file a response, so the claim proceeded by formal proof on 12th June 2023. The court framed two issues: whether the termination was wrongful, unfair and unprocedural, and whether the reliefs sought were payable. Applying sections 41, 43, 45 and 47(5) of the Employment Act and following George Musamali v G4S, the court held the employer bore the un discharged burden of proving a valid reason and fair procedure. The claimants were never heard, and the respondents adduced no evidence of the theft, so the termination was unfair. The court awarded each claimant four months' withheld salary (Kshs. 34,545.20), one month's pay in lieu of notice, six months' pay as compensation (Kshs. 51,817.80), underpayment compensation of Kshs. 73,816.40 for 28 months, housing allowance at 15% of basic pay, a certificate of service, costs and interest, subject to statutory deductions. The gratuity claim was declined because the employer remitted NSSF contributions, barring double benefit under section 35(6). The suit was thus partially allowed.

Key legal issues

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01

Whether the termination was wrongful, unfair and unprocedural

Holding

Yes - no valid reason was proved and no disciplinary hearing was conducted, breaching sections 41 and 45 of the Employment Act

Reasoning

The claim was uncontroverted; the respondents did not substantiate the alleged theft nor take the claimants through a disciplinary hearing as required by section 41. Under sections 43(1), 45(2) and 47(5) the employer bears the burden of proving a valid reason and fair procedure. Neither was met, so the termination was unfair within section 45.

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02

Whether the Claimants are entitled to the reliefs sought

Holding

Partially - salaries, notice pay, compensation, underpayment and housing allowance awarded; gratuity declined

Reasoning

Unpaid suspension without pay contravened Regulation 23(2). Six months' compensation was awarded considering long service and unproved misconduct; house allowance at 15% of basic pay granted; certificate of service granted under section 51; gratuity declined due to NSSF contributions under section 35(6).

p. 5

Legal principles established

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  • For a termination of employment to be fair it must be grounded on a valid reason and fair procedure; the burden of proving the reason rests on the employer.
  • Suspension without any pay contrary to the Wage Regulations amounts to an unfair labour practice.

Court orders

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  1. 1.Kshs. 34,545.20 being 4 months' salary for the months of May, June, July and August to be paid in full
  2. 2.One-month's salary as payment in lieu of notice
  3. 3.Kshs. 51,817.80 being an equivalent of six months' pay as compensation for unfair termination
  4. 4.Kshs. 73,816.40 being compensation for underpayment for 28 months
  5. 5.Housing allowance at the rate of 15% of the basic pay
  6. 6.Costs of this suit plus interest at court rates from date of this judgement
  7. 7.The award is subject to statutory deductions
  8. 8.Certificate of Service to issue

Authorities

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Legislation

  • Employment Actsections 41(1), 41(2), 42(1), 43(1), 44(3), 44(4), 45(1), 45(2), 47(5), 49, 35(6), 51
  • Regulation of Wages (Protective Security Services) OrderRegulation 23(2)
  • Regulations of Wages (General) Order, 2018minimum wage provisions
  • Constitution of KenyaArticle 47
  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • Pius Munguti Charo v Board of Management Mirithu Secondary School
    [2021] eKLR
  • Emmanuel Simiyu v Board of Management Sipala Fym Primary School
    [2019] eKLR
  • George Musamali versus G4S Security Services Kenya Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (sections 41, 43, 45, 47(5), 49, 51 and 35(6))

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, "Bishar & 3 others v World Assembly of Muslim Youth (WAMY) EA & 3 others (Employment and Labour Relations Cause E002 of 2023) [2024] KEELRC 206 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/206/eng@2024-02-09

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