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ELRCPartially AllowedAppeal No E003 of 2024· [2024] KEELRC 1486 (KLR)

Riley Falcon Security Services Limited v Nyagah & another (Appeal E003 of 2024) [2024] KEELRC 1486 (KLR)

Employment and Labour Relations Court
16 May 2024
MMM. MBARŨ
3,057 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed firing workers for desertion without proof of efforts to contact them is unfair, and slashed excessive compensation.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the magistrate's court (Malindi CMELRC No. E103 of 2021) delivered on 31 January 2024, in which two security guards claimed unfair termination and terminal dues from Hatari Security Guards Ltd. The trial court found unfair termination in favour of both respondents and awarded public holidays, risk allowance, notice pay, 12 months' compensation and costs, dismissing the overtime claims. On appeal, the ELRC re-evaluated the entire record as a first appeal. It upheld the finding that the 1st respondent's employment was unfairly terminated: the appellant's claim of desertion was contradicted by its own evidence of a notice to show cause, and no proof of efforts to trace the employee or of a hearing under Section 41 of the Employment Act was adduced. However, the maximum award of 12 months' compensation was set aside because the magistrate gave no reasons for it; compensation was reduced to 3 months' gross wage (Ksh.40,500), with notice pay of Ksh.13,500 confirmed. For the 2nd respondent, whose fixed-term contract lapsed on its terms in January 2021, the court held that non-renewal is not unfair termination and set aside the awards of notice pay, compensation, holidays and risk allowance. The court, however, found overtime due for both respondents (Ksh.148,500 and Ksh.120,000 respectively) since the employer produced no work records to rebut the claims, and held all awards subject to statutory deductions under Section 49(2). Costs of the trial court stand; on the appeal, which was partially successful, each party bears its own costs. The appellant's written submissions were excluded from consideration over doubts about their filing.

Key legal issues

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01

Unfair termination of the 1st respondent

Holding

Termination was unfair; desertion claim not proved and no hearing accorded

Reasoning

The appellant's evidence of a notice to show cause was at variance with the pleading that the 1st respondent deserted duty and could not be traced. Even gross misconduct requires a hearing under Section 41(2), and desertion requires proof of efforts to contact the employee.

p. 4
02

Fixed-term contract of the 2nd respondent

Holding

Contract lapsed on its terms; no notice pay or compensation due

Reasoning

Fixed-term contracts are lawful and their non-renewal does not amount to unfair termination. Clause 9.2 permitted termination by notice pending expiry, but here the contract simply ran its course to January 2021.

p. 5
03

Quantum of compensation

Holding

12 months' compensation set aside; 3 months' gross wage awarded to the 1st respondent

Reasoning

The trial magistrate gave no reasons for the maximum award. Since compensation is discretionary and must be applied judicially with reasons, the appellate court interfered and awarded 3 months' gross wage given the under-3-year period of service.

p. 5
04

Overtime claims

Holding

Overtime awarded: Ksh.148,500 to the 1st respondent and Ksh.120,000 to the 2nd respondent

Reasoning

The employer is required to produce work records upon a claim for overtime; none were produced to challenge the 1st respondent's claim. The 2nd respondent's overtime is limited to the 16 months within the limitation period, not 32 months.

p. 6
05

Public holidays and risk allowance

Holding

Awards set aside

Reasoning

Public holiday claims require particulars of the gazetted days worked; a general claim is not justified. Risk allowance is not a legal right and must be founded on the contract or an agreement, which was not produced.

p. 6

Legal principles established

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  • Dismissal on account of desertion requires evidence of reasonable steps to contact the employee
  • A fixed-term contract that lapses on its terms does not create legitimate expectation of renewal and non-renewal is not unfair termination
  • A maximum award of 12 months' compensation must be justified with reasons by the trial court
  • All awards are subject to statutory deductions

Court orders

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  1. 1.Judgment of 31 January 2024 in Malindi CMELRC No. E013 of 2021 reviewed
  2. 2.1st respondent awarded certificate of service, notice pay Ksh.13,500, compensation Ksh.40,500 and overtime pay Ksh.148,500
  3. 3.2nd respondent awarded certificate of service and overtime Ksh.120,000
  4. 4.Awards subject to statutory deductions under Section 49(2) of the Employment Act
  5. 5.Costs of the trial court as awarded; for the appeal, each party bears its own costs

Authorities

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Legislation

  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 35
  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 18(5)(b)
  • Employment Act, 2007Section 10(3)
  • Employment Act, 2007Section 18(4)
  • Employment Act, 2007Section 49 and 49(2)
  • Employment Act, 2007Section 90
  • Regulation of Wages (Protective Security Services) (Amendment) OrderOvertime provisions

Cases cited (9)

  • Mursal & another v Manese (suing as the legal administrator of Delphine Kanini Manesa)
    Civil Appeal No. E20 of 2021
  • Trust Bank Limited v Paramount Universal Bank Limited & 2 others
  • Kenya Union Of Commercial Food And Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • Oyombe v Eco Bank Limited
    (Civil Appeal 185 of 2017) [2022] KECA 540 (KLR)
  • Richard Maingi vs Wells Fargo Limited
    2017 eKLR
  • Transparency International Kenya v Teresa Carlo Omondi
    [2023] eKLR
  • Kenya Broadcasting Corporation v Geofirey Wakio
    [2019] eKLR
  • Hatari Security Guards Ltd v Odongo
    (Appeal E012 of 2022) [2023] KEELRC 2812 (KLR)
  • Kenya National Private Security Workers Union v G4s Kenya Limited & 2 others; Central Organization of Trade Unions Cotu (K) & 4 others (Interested Parties)
    [2021] eKLR
On appeal from
Magistrates' Court (ELRC), Malindi
Malindi CMELRC No. E103 of 2021
Jurisdiction invoked
First appeal from the magistrates' court under employment law; the court exercised its power to re-assess and re-evaluate the entire record

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Riley Falcon Security Services Limited v Nyagah & another (Appeal E003 of 2024) [2024] KEELRC 1486 (KLR)", Case Analysis (2024). Appeal No E003 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1486/eng@2024-05-16

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