Thoya v Delfy Security Limited (Appeal E125 of 2023) [2024] KEELRC 949 (KLR)
The bottom line
#A Mombasa court ruled a security guard's 'silent' dismissal after his client contract ended was unfair, awarding him unpaid wages and allowances.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the appellant's employment was unfair
The termination was unfair because the respondent failed to issue notice to the appellant to report for reassignment after the client's contract ended and never brought him to account through due process under Sections 41 and 44 of the Employment Act.
Section 13 of the Employment Act obliges the employer to communicate employment changes in writing. On receiving the client's notice terminating the guarding contract, the respondent was required to notify the appellant to report for reassignment. The respondent instead left him at large and only checked the site. No show cause notice was issued. Sections 41 and 44 were not adhered to, resulting in unfair termination.
Whether the appellant was underpaid and entitled to house allowance, notice pay, salary for days worked and compensation
The appellant was underpaid relative to the minimum wage of Ksh.15,141.95 for a night guard in Mombasa, and was awarded underpayments, house allowance at 15%, notice pay, salary for days worked in May 2020, one month's compensation and the deducted amounts.
Bank statements confirmed payment of varying wages around Ksh.7,000 against a minimum wage of Ksh.15,141.95. Underpayments of Ksh.170,980.95 over 21 months, house allowance at 15% of the minimum wage, notice pay, and salary for 12 days worked were computed. Compensation of one month's gross wage was awarded since the appellant secured new employment immediately.
Whether the monthly deductions of Ksh.900 were lawful
The deductions were unjustified as the respondent did not comply with Sections 17, 18 and 20 of the Employment Act; the claim for Ksh.900 for 21 months was justified.
Alienation of an employee's wage must be for given reasons and abide by Sections 17, 18 and 20 of the Act, including issuance of a payment statement. The wages paid were staggered and unexplained. Effecting deductions without due course is an employment violation, so the deduction claim succeeded.
Whether the overtime claim should be allowed
The overtime claim failed as a general claim lacking particulars of hours worked.
Under the Regulation of Wages (Protective Security Services) (Amendment) Order a night guard may work ten hours spread over a week with a rest day. The appellant did not plead or prove his total hours, starting or exit times, so the amount due could not be assessed.
Legal principles established
#- An employer who receives notice that a client has terminated a contract must issue the employee written notice to report for reassignment; failing that, and failing due process under Sections 41 and 44, the termination is unfair.
- An employer alleging absconding must make reasonable efforts to contact the employee and issue a show cause notice before termination.
- Wage deductions must comply with Sections 17, 18 and 20 of the Employment Act; unexplained deductions are an employment violation.
- Even in summary dismissal, an employee retains accrued legal entitlements, and a trial court must address each claim on the merit.
Court orders
#- 1.Employment of the appellant was terminated unfairly by the respondent
- 2.Compensation awarded at Ksh.17,313.15
- 3.Notice pay Ksh.17,413.15
- 4.Salary 12 days worked in May 2020 Ksh.6,972
- 5.Amount deducted for 21 months Ksh.18,900
- 6.Underpayments Ksh.170,980.95
- 7.House allowance Ksh.47,695.15
- 8.Certificate of service
- 9.50% costs
- 10.Judgment in Mombasa CMELRC No. E085 of 2023 set aside
- On appeal from
- Magistrates' Court (CMELRC), Mombasa
- Mombasa CMELRC No. E085 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over Mombasa CMELRC No. E085 of 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thoya v Delfy Security Limited (Appeal E125 of 2023) [2024] KEELRC 949 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/949/eng@2024-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.