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ELRCPartially AllowedNot stated in judgment (ELRC Appeal, Nyeri)· [2024] KEELRC 1877 (KLR)

Karanja v A.D.N Security Ltd (Appeal E013 of 2023) [2024] KEELRC 1877 (KLR)

Employment and Labour Relations Court
19 July 2024
OMONESMUS N MAKAU
2,185 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 found a security guard resigned rather than being dismissed, but his employer still owes him leave, rest day and salary dues admitted in writing.

What this practically means

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Executive summary

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The appellant, a watchman employed by ADN Security Company, sued in the magistrates' court claiming unfair and unlawful termination and accrued employment benefits of Kshs.416,083.18. The trial court (Hon F. Muguongo, PM) dismissed the entire suit with costs on the basis that the appellant had admitted resigning from employment. On appeal to the Employment and Labour Relations Court at Nyeri, Onesmus N Makau J, exercising the first appellate mandate to re-evaluate evidence, framed three issues: whether the appellant was summarily dismissed or resigned; if dismissed, whether the termination was unfair; and whether the reliefs were merited. On the evidence, including the appellant's own admission in cross-examination that he was not dismissed and had no termination letter, the court found the appellant voluntarily resigned via a letter dated March 6, 2020 and that the unfair termination claim did not arise; the trial court was right to disallow notice pay and compensatory damages. However, the court found the trial court erred by failing to analyze the pleadings and evidence fully, leaving undetermined the claims for unpaid leave, rest days, house allowance, service pay and unpaid salary, and failing to award the admitted sum of Kshs.34,300 (annual leave 2019, 53 off-duty days and half a month salary). The appeal was declared partially successful. The court ordered that the appeal be partially allowed, the suit be remitted to the lower court for determination of the undetermined matters by a judicial officer other than Hon F. Muguongo-PM, and awarded the appellant costs of the appeal plus interest. Judgment was delivered virtually via Teams with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether the appellant was summarily dismissed or voluntarily resigned

Holding

The appellant was not summarily dismissed; he voluntarily resigned after being invited to a disciplinary hearing, as corroborated by his own admission in cross-examination that he was not dismissed

Reasoning

The appellant pleaded summary dismissal but admitted in cross-examination that he had no letter of termination and was not dismissed, and that he wrote a letter quitting employment and demanding his dues. DW1 confirmed he was never dismissed. The court construed the letter of March 6, 2020 as a termination notice with a demand for dues, not a response to a request to resign.

p. 4
02

Whether failure to prove summary dismissal defeated the accrued benefits claims

Holding

No; the trial court erred in dismissing the entire suit without determining the claims for unpaid leave, rest days, house allowance, service pay, unpaid salary and the admitted sum of Kshs. 34,300

Reasoning

The first appellate court found the trial court failed to analyze the pleadings and evidence fully, leaving a large part of the claim undetermined. The respondent had admitted Kshs. 34,300 in its written submissions (annual leave for 2019, 53 off-duty days and half a month salary), which the trial court failed to award.

p. 5

Legal principles established

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  • On a first appeal, the court must re-evaluate the evidence on record and make its own independent conclusions, while bearing in mind that it did not see the witnesses testify

Court orders

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  1. 1.The appeal is partially allowed
  2. 2.The suit is remitted back to the Lower Court for determination of undetermined matters (unpaid leave, rest days, house allowance, service pay and unpaid salary) by a Judicial Officer other than Hon. F. Muguongo-PM
  3. 3.Appellant is awarded costs of the appeal plus interest

Authorities

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Legislation

  • Employment Actsections 10, 26, 31, 35, 36, 43, 45(1), 47(5), 74
  • Labour Institutions Actsections 26 and 48(1)
  • Constitution of Kenya, 2010Articles 30(1) and 41
  • Regulation of Wages Orders2015, 2017 and 2018
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (8)

  • Anthony Mkala Chitavi v Malindi Water and Sewerage Co. Limited
    [2013] eKLR
  • Ezekiel Nyangoya Okemwa v Kenya Marine & Fisheries Research Institute
    [2016] eKLR
  • Otinyu Muruka v Equity Bank Limited
    [2013] eKLR
  • Daudi Haji v Kenya Ports Authority
    [2013] eKLR
  • Musera v Mwechelesi & another
    [2007] KLR 159
  • Kennedy Obala Oaga v Kenya Ports Authority
    [2018] eKLR
  • Mary Wanjiku Gachigi v Ruth Muthoni
    Civil Appeal No. 172 of 2000 KLR 7276 (CAK) (2003) 1 EA 69; KLR 169
  • Selle v Associated Motor Boat Company Ltd
    (1968) EA 123
On appeal from
Magistrates' Court (Hon F. Muguongo, PM)
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court under the Employment and Labour Relations Court (Procedure) Rules; appeal against the judgment of the trial magistrate

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, "Karanja v A.D.N Security Ltd (Appeal E013 of 2023) [2024] KEELRC 1877 (KLR)", Case Analysis (2024). Not stated in judgment (ELRC Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1877/eng@2024-07-19

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