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ELRCPartially Allowed· [2024] KEELRC 2274 (KLR)

Kalinda v Race Guards Limited (Employment and Labour Relations Cause 331 of 2017) [2024] KEELRC 2274 (KLR)

Employment and Labour Relations Court
20 September 2024
4,293 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled a security guard was unfairly terminated and awarded him notice pay, compensation, leave pay, and years of unpaid minimum wage differences.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Night Security Guard from 5th July 2004, claimed his employment was terminated on account of redundancy on 28th July 2016 when his supervisor, Mr. Mutua, instructed him not to report to work from 1st August 2016. He alleged the termination breached sections 40, 41, 43 and 45 of the Employment Act and sought unpaid dues, notice pay, leave pay, underpaid salary and compensation. The Respondent denied terminating him, contending that following a theft incident at its client's premises, the Claimant deserted duty on 1st August 2016 and could not be reached. The court framed two issues: whether the termination was unfair, and entitlement to reliefs. It clarified the dualistic burden of proof under section 47(5): the employee need only establish a prima facie case, whereupon the burden shifts to the employer. The Claimant discharged that burden; the Respondent's desertion narrative was held sketchy and unconvincing, as it produced no evidence of concrete efforts to contact him, no show cause letter, and did not call the supervisor to testify. The termination was found substantively and procedurally unfair. On reliefs, the court awarded one month's salary in lieu of notice computed at the minimum wage of KShs. 12,221.10, seven months' gross salary as compensation for unfair termination, leave pay for three years under section 90, and the differential between the KShs. 6,000 salary and the applicable Wages Order minimums for 1st August 2013 to 31st July 2016, holding that statutory minimum wages cannot be out-contracted. Judgment was entered for the Claimant with interest and costs against the Respondent. Judgment was delivered on 20th September 2024 at Nairobi by Ocharo Kebira J.

Key legal issues

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01

Whether the Respondent unfairly terminated the Claimant's employment

Holding

Yes. The Claimant discharged his prima facie burden under section 47(5); the Respondent failed to prove desertion or adherence to sections 41, 43 and 45 of the Employment Act.

Reasoning

The court held that desertion must be proved by evidence of genuine efforts to contact the employee, including written communication to the last known address. The Respondent's witness gave vague, unsupported testimony about phone calls and contacting relatives, and no show cause letter was issued. The Respondent did not call the supervisor Mr. Mutua, whose alleged instruction to stop reporting to work supported the Claimant's version of termination without cause.

p. 6
02

Entitlement to notice pay, compensation, leave pay and underpaid salary

Holding

The Claimant was awarded one month's salary in lieu of notice, seven months' gross salary as compensation, leave pay for three years, and the differential between his actual salary of KShs. 6,000 and the statutory minimum wage from 1st August 2013 to 31st July 2016.

Reasoning

Termination being unfair, section 35 entitled the Claimant to notice pay. Section 49 discretionary compensation was assessed at seven months given 12 years of service and the unprocedural manner of termination. Wages Order minimums were held to be implied contractual terms under section 48 of the Labour Institutions Act, and leave compensation was limited by section 90 to the three years preceding suit.

Legal principles established

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  • The burden of proof in unfair termination disputes is dualistic: the employee must first establish a prima facie case under section 47(5), whereupon the burden shifts to the employer to justify the termination.
  • Where an employer asserts desertion, it must prove it made efforts to contact the employee and indicate intention to take disciplinary action.
  • Minimum wages prescribed in a Wages Order constitute terms of the contract of employment and cannot be out-contracted.
  • The right to annual leave obliges the employer to facilitate its enjoyment; failure by the employee to apply for leave is no defence.

Court orders

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  1. 1.A declaration that the Respondent's action to terminate the Claimant's employment was unfair
  2. 2.One month's salary in lieu of notice Kshs. 12,221.10
  3. 3.Compensation for earned but untaken leave days for 3 years KShs. 25,664
  4. 4.Compensation for unfair termination (12,221 x 7) KShs. 85,547.00
  5. 5.Underpaid salary for the period 1st August 2013 - 31st July 2016 KShs. 197,862.8
  6. 6.Interest on the sums awarded at Court rates from the date of Judgment until payment in full
  7. 7.The Respondent shall bear the costs of this suit

Authorities

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Legislation

  • Employment Actsections 28, 35, 40, 41, 43, 45, 47(5), 49(1), 90
  • Labour Institutions Actsection 48
  • Regulation of Wages Order2010, 2012, 2013, 2015, 2017
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Kenya Airways Limited v Aviation and Allied Workers Union & Others
    [2014] eKLR
  • Boniface Nkumbi v Protective Custody Ltd
    [2019] eKLR
  • Joshua Lihanda v Outdoor Occasions Limited
    [2014] eKLR
  • Joseph Nzioki v Smart Coatings Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act (first-instance employment claim)

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, "Kalinda v Race Guards Limited (Employment and Labour Relations Cause 331 of 2017) [2024] KEELRC 2274 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2274/eng@2024-09-20

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