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ELRCPartially AllowedMemorandum of Appeal dated 4th December 2023 (ELRC Appeal, Nyeri)· [2024] KEELRC 2199 (KLR)

Kenwatch Security Services Ltd v Mwangi (Employment and Labour Relations Appeal E022 of 2023) [2024] KEELRC 2199 (KLR)

Employment and Labour Relations Court
12 September 2024
2,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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An employee who refuses a transfer and stops showing up to work cannot claim unfair dismissal in Kenya — but employers must still pay salary arrears, leave and house allowance.

What this practically means

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Executive summary

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The ELRC at Nyeri (Onesmus N Makau, J) determined a first appeal against a magistrate's court judgment (Hon. Gituma, SRM, delivered 22nd November 2023) which had found that a security guard's employment was unfairly terminated and awarded him Kshs.100,400 in terminal dues. The respondent was employed by the appellant security firm from September 2021 and separated on 2nd June 2022 after a transfer from Nebo Hospital to Mpeta Guest House which he failed to take up. He alleged dismissal by phone by his supervisor, Mr.Kingori; the appellant maintained he absconded and said he had secured another job. On a first appeal, the court re-evaluated the evidence applying Selle v Associated Motor Boat Company Ltd. It held that the respondent failed to prove dismissal on a balance of probability: he pleaded no date or author of the dismissal, while the appellant produced an unchallenged Dispatch and Transfer Form establishing the transfer. The court found the respondent refused transfer and absconded work, so he was to blame for the separation; the declaration of unfair termination, six months' compensation and one month's salary in lieu of notice were set aside. The refund of NSSF and NHIF contributions was also set aside for want of proof of deductions. The awards of unpaid salary for October–December 2021 (Kshs.24,000), pro-rata leave (Kshs.4,200) and house allowance at 15% for nine months (Kshs.10,800) were upheld, totalling Kshs.39,100 subject to statutory deductions. The trial court's award of costs and interest remained unchanged, but each party was ordered to bear its own costs of the appeal. The appeal partially succeeded.

Key legal issues

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01

Whether the respondent was dismissed or absconded

Holding

The respondent failed to prove dismissal by Mr.Kingori; evidence shows he refused transfer and absconded work.

Reasoning

The respondent gave no date or reason for the alleged phone-call dismissal and did not plead it. The appellant produced an unchallenged Dispatch No.299 dated 1st June 2022 and a Transfer Form dated 30th May 2022 transferring the respondent from Nebo Hospital to Mpeta. The respondent did not report and, per DW1, said he had secured another job. Absconding, not termination, was established.

p. 5
02

Unfair termination claim and compensation under section 49

Holding

Having found absconding, the respondent is not entitled to a declaration of unfair termination, compensation or salary in lieu of notice; the trial court erred in so finding.

Reasoning

Compensation under section 49 of the Employment Act presupposes unfair termination by the employer. Since the respondent's own conduct of refusing transfer and absconding caused the separation, the sections 41, 43, 44 and 45 claims fail and the awards of notice pay and six months' compensation were set aside.

p. 5
03

Terminal dues: unpaid salary, leave, house allowance, NSSF/NHIF

Holding

Unpaid salary for October–December 2021 (Kshs.24,000), pro-rata leave (Kshs.4,200) and house allowance at 15% for nine months (Kshs.10,800) upheld; NSSF/NHIF refund set aside for want of proof.

Reasoning

The appellant produced payrolls only for September 2021 and January 2022, so salary for the intervening three months is payable. Leave accrued at 1.75 days per month over nine months. Absent proof of housing, section 31 mandates house allowance at the judicially adopted 15% rate. Bank statements showed salary credited without deductions, defeating the NSSF/NHIF claim.

p. 6

Legal principles established

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  • On a first appeal the court must re-evaluate the evidence and reach its own conclusions, making allowance for not having seen or heard the witnesses
  • He who alleges must prove his allegations on a balance of probability
  • An employee who refuses transfer and absconds work is to blame for termination of employment and cannot claim unfair termination
  • Parties are bound by their pleadings and must plead the material facts of dismissal

Court orders

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  1. 1.Award of unpaid salary for October–December 2021 of Kshs.24,000.00 upheld
  2. 2.Award of leave of Kshs.4,200.00 (15.75 days) upheld
  3. 3.Award of house allowance of Kshs.10,800.00 (15% of basic pay for 9 months) upheld
  4. 4.Total award of Kshs.39,100.00 subject to statutory deductions
  5. 5.Award of NSSF and NHIF refund set aside
  6. 6.Awards of salary in lieu of notice and six months' compensation for unfair termination set aside
  7. 7.Costs and interest awarded by the trial court to remain unchanged
  8. 8.Each party to bear own costs of the appeal

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsections 43, 44, 45
  • Employment Actsection 49 (including 49(4)(b) and (k))
  • Employment Actsection 74
  • Employment Actsection 31
  • Evidence Actsection 107
  • General Wages Order2018
  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • Selle v Associated Motor Boat Company Ltd
    (1968) EA 123
  • Xforce Security Solution (KE) Ltd v Samuel Tsimba Ndonga
    null
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co.Ltd
    null
On appeal from
Magistrates' Court (ELRC, Hon. Gituma SRM)
not stated in judgment
Jurisdiction invoked
First appeal under ELRC jurisdiction; judgment delivered per Rule 28(3) ELRC Procedure Rules waiver

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, "Kenwatch Security Services Ltd v Mwangi (Employment and Labour Relations Appeal E022 of 2023) [2024] KEELRC 2199 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 4th December 2023 (ELRC Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2199/eng@2024-09-12

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