Livingstone v Hatari Security Guards Limited (Cause 2282 of 2017) [2024] KEELRC 207 (KLR)
The bottom line
#A Kenyan court awarded a security guard over Kshs 176,000 because his employer fired him without a valid reason or a hearing and paid below minimum wage.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was fair and lawful
The termination was wrongful, unlawful and unfair for lack of valid reason and breach of fair procedure
The employer did not adduce any evidence to justify the termination or prove a valid reason under sections 43 and 45 of the Employment Act, and did not accord the Claimant a hearing under section 41. The uncontroverted testimony of the Claimant therefore established unfair and wrongful termination.
Whether the Claimant was underpaid
Yes; entitled to Kshs 70,857 being the shortfall against the applicable minimum wages for night guards
The Regulations of Wages (General) (Amendment) Orders of 2015 and 2017 set minimum monthly wages for night guards at Kshs 12,221 and Kshs 14,420.90. The Claimant earned Kshs 9,500, below the minima, and the respondent produced no evidence to controvert the claim.
Whether the Claimant was entitled to house allowance
Yes; Kshs 42,723 awarded
Under section 31 of the Employment Act the employer must provide housing or a sufficient sum as rent. The respondent failed to produce evidence that salary was inclusive of house allowance or that accommodation was provided.
Overtime, holiday pay and leave
Leave and notice/September salary awarded as part of the Kshs 25,195.08; overtime and holiday pay declined
The respondent produced no records to controvert the claims, but the court declined overtime and holiday pay for lack of clarity on the days worked, holding that awards cannot be made in abstract.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- The burden of justifying the lawfulness of a termination, both substantive and procedural, lies with the employer
- Minimum wage rates in a Wages Order constitute terms of employment and paying below them is an offence
Court orders
#- 1.Judgment entered for the Claimant for unfair termination
- 2.Award of Kshs 70,857 for underpayment
- 3.Award of Kshs 42,723 as house allowance
- 4.Award of Kshs 25,195.08 for September 2017 salary and notice pay
- 5.Award of Kshs 37,793.70 being 3 months' salary as damages for unfair termination
- 6.Total award of Kshs 176,569.70
- 7.Costs to the Claimant
- 8.Interest at court rates from date of judgment until full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Livingstone v Hatari Security Guards Limited (Cause 2282 of 2017) [2024] KEELRC 207 (KLR)", Case Analysis (2024). Cause No 2282 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/207/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.