Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment (Cause filed 4 August 2023)· [2024] KEELRC 499 (KLR)

Serem v JRS Group Limited (Cause E056 of 2023) [2024] KEELRC 499 (KLR)

Employment and Labour Relations Court
6 March 2024
1,043 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ordered a security company to pay a former guard over Kshs 1.2 million because it couldn't prove he deserted his job and had no payroll records.

What this practically means

#

Executive summary

#
The Claimant, a security guard, sued the Respondent for unfair termination of employment on 24 December 2022 and breach of contract/statute, claiming underpayments over 105 months, accrued leave, service pay, December 2022 wages, overtime, house allowance and deducted November 2022 wages. The Respondent denied terminating the Claimant, asserting that he was issued a warning letter, instructed to attend refresher training before redeployment to Kisumu, and treated as having deserted when he did not report. The Court found the desertion defence unconvincing: the Respondent had the Claimant's contact details but made no meaningful attempt to contact him, and ignored a formal demand letter from his advocate. Relying on sections 35(1)(c) and 41 of the Employment Act, 2007, the Court held that desertion warrants summary dismissal only after show cause or notice and an attempted disciplinary hearing. The termination was declared unfair. However, factoring section 49(4)(i), the Court declined compensation, awarding only one month's pay in lieu of notice. On the contractual heads, the Respondent produced no payroll, leave or pay records and admitted giving no written contract; the Court allowed underpayments of Kshs 441,359/-, accrued leave restricted to the last 18 months at Kshs 21,057/-, overtime of Kshs 425,257/-, house allowance of Kshs 214,781/-, December wages of Kshs 14,038/-, service pay of Kshs 81,252/- and deducted wages of Kshs 1,800/-, totaling Kshs 1,213,582/4, with costs and interest to the Claimant.

Key legal issues

#
01

Unfair termination

Holding

The Court discounted the defence of desertion and found the termination unfair

Reasoning

The Respondent claimed the Claimant deserted after being instructed to attend refresher training before redeployment to Kisumu. The Respondent had the Claimant's contact details but made no meaningful attempt to contact him, and did not respond to a formal demand letter from his advocate. Desertion warrants summary dismissal only after a show cause or notice under section 35(1)(c) and an attempted disciplinary hearing under section 41 of the Employment Act, none of which occurred.

p. 2
02

Underpayments, leave, overtime and house allowance records

Holding

These heads of claim were allowed because the Respondent produced no payroll, leave or pay records and gave the Claimant no written contract

Reasoning

Sections 20, 21 and 10(3) of the Employment Act require the employer to keep payroll and leave records; section 31 obliges the employer to provide housing or house allowance. The Respondent chose not to respond to the underpayment claim or produce pay records, and admitted it did not issue a written contract. As a security guard, the Claimant was subject to the Regulation of Wages (Protective Security Services) Order, 1998 limiting shifts, and judicial notice was taken that guards work 12-hour shifts, so overtime was clear.

p. 3
03

Accrued leave quantum

Holding

Accrued leave awarded but restricted to the last 18 months of the contract

Reasoning

Section 10(3) requires the employer to maintain leave records to determine entitlement to annual leave. The Respondent did not place such records before the Court. Factoring in section 28(4) of the Employment Act, the Court restricted the award to the last 18 months, equivalent to one and a half months' salary.

p. 3

Legal principles established

#
  • An employer alleging desertion must still issue show cause or notice under section 35(1)(c) and attempt a disciplinary hearing under section 41 of the Employment Act before summary dismissal
  • Where an employer fails to keep the payroll, leave and pay records contemplated by sections 10(3), 20, 21, 28(4) and 31 of the Employment Act, adverse findings follow on the employee's claims

Court orders

#
  1. 1.Declaration that the Respondent unfairly terminated the Claimant's employment and was in breach of contract
  2. 2.Payment of pay in lieu of notice of Kshs 14,038/-
  3. 3.Payment of underpayments of Kshs 441,359/-
  4. 4.Payment of accrued leave of Kshs 21,057/-
  5. 5.Payment of overtime of Kshs 425,257/-
  6. 6.Payment of house allowance of Kshs 214,781/-
  7. 7.Payment of December wages of Kshs 14,038/-
  8. 8.Payment of service pay of Kshs 81,252/-
  9. 9.Payment of deducted wages of Kshs 1,800/-
  10. 10.Total award of Kshs 1,213,582/4 to the Claimant
  11. 11.Costs of the Cause to the Claimant with interest from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and breach of contract/statute under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Serem v JRS Group Limited (Cause E056 of 2023) [2024] KEELRC 499 (KLR)", Case Analysis (2024). Not stated in the judgment (Cause filed 4 August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/499/eng@2024-03-06

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