Bwire v Wasso Security Services Limited (Cause 335 of 2017) [2024] KEELRC 714 (KLR)
The bottom line
#A Kenyan court awarded a former security guard over Kshs 1 million in unpaid dues after his employer failed to defend the claim or keep proper records.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant, who resigned voluntarily after giving one month's notice and working the notice period, was entitled to payment for the notice period
- 2.Whether the Claimant was entitled to balance of salary for August and September 2016
- 3.Whether the Claimant was entitled to house allowance
- 4.Whether the Claimant was entitled to unpaid/untaken leave
- 5.Whether the Claimant was entitled to unpaid public holidays, underpayments, ofi days, overtime and service pay
Key legal issues
#Entitlement to payment for notice period after voluntary resignation
The court held the Claimant resigned by giving one month's notice and worked through the notice period, entitling him to payment for it, in compliance with section 35(1)(c) of the Employment Act
It was undisputed that the Claimant was employed from 1st March 2011 and resigned effective 1st October 2016 by a letter dated 1st September 2016 giving one month's notice. He continued working during the notice period as the law requires. Payment for the notice period therefore followed, and the Respondent adduced no contrary evidence being undefended.
Whether house allowance was payable
The court declined the house allowance claim because the appointment letter did not provide for it
Although the Claimant relied on section 31 of the Employment Act and section 74 record-keeping obligations, arguing the appointment letter never consolidated salary to include house allowance, the court found the appointment letter did not provide for house allowance and therefore held the prayer unjustified — yet the final award nonetheless includes a house allowance line item, an internal contradiction.
Untaken/unpaid leave, public holidays, underpayments, ofi days, overtime and service pay
The court awarded these heads because the entitlements appeared in the appointment letter, the 2015 leave form showed a balance, and the Respondent produced no evidence to the contrary
The court considered each head individually. The leave form of 2015 showed 11 days taken with a balance of 10 days; public holidays, ofi days and overtime were provided for in the appointment letter; underpayments below the statutory minimum wage under the Regulation of Wages Orders were confirmed; and service pay was awarded for the year NSSF was not remitted, absent contrary evidence.
Legal principles established
#- An employee who resigns after giving the statutory notice and continues working the notice period is entitled to be paid for the notice period
- In an undefended claim, the court is inclined to award the prayers sought absent justification to the contrary
- An employer who fails to produce employment records cannot contradict an employee's claim for unpaid entitlements
Court orders
#- 1.The Claimant's claim is allowed
- 2.Respondent to pay balance of salary for August 2016 of Kshs 4,000/= and September 2016 salary of Kshs 10,954.70/=
- 3.Respondent to pay house allowance of Kshs 108,451/-
- 4.Respondent to pay unpaid leave of Kshs 49,034.8/=
- 5.Respondent to pay unpaid public holidays of Kshs 44,184/=
- 6.Respondent to pay underpayments of Kshs 114,555/=
- 7.Respondent to pay ofi days of Kshs 192,803/=
- 8.Respondent to pay overtime of Kshs 542,322/-
- 9.Respondent to pay service pay for one year of Kshs 5,477.35/=
- 10.Total award of Kshs 1,071,781.85/= subject to taxes and statutory deductions
- 11.Interest at court rates from the date of judgment until payment in full
- 12.Costs of the suit to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court, per the Employment Act and the court's employment jurisdiction
Relief refused
#Part of the claimed unpaid leave amounts for 2015
The court found the Claimant had taken 11 days leave in 2015 with a remaining balance of 10 days whose utilization was unclear, so it excluded the 2015 leave amounts of Kshs 5,216/=
Claim as quantified at Kshs 1,077,520.55
The court awarded a slightly lower global figure of Kshs 1,071,781.85/= after adjusting the leave claim
Costs
The claim is allowed with costs to the Claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the Claimant's claim is hereby allowed with costs as follows:
This award shall be subject to taxes and statutory deductions but shall attract interest at court rates from the date of judgment until payment in full
The Court will therefore be more inclined to award most of the prayers sought unless there is justification to the contrary.
It is so ordered.
Issues in the judgment
#The court held the house allowance prayer unjustified yet the final award includes a house allowance of Kshs 108,451/-
The court awards claimed leave amounts 'apart from 2015' excluding Kshs 5,216/= but the final award for unpaid leave (Kshs 49,034.8/=) is not reconciled with that exclusion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bwire v Wasso Security Services Limited (Cause 335 of 2017) [2024] KEELRC 714 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/714/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.