Total Security Surveillance Limited v Karibu (Appeal E044 of 2023) [2024] KEELRC 2331 (KLR)
The bottom line
#Kenyan employers cannot leave staff on indefinite suspension; the ELRC held this amounts to constructive dismissal, though it reduced the compensation awarded.
What this practically means
#Executive summary
#Key legal issues
#Indefinite suspension as constructive dismissal
The appellant's failure to recall the respondent or invite him to show cause within a reasonable time amounted to constructive dismissal constituting unfair termination.
The court held that suspension is only an interim investigative measure. Once investigations conclude, the employee must be recalled if not culpable or invited to show cause under Section 41 of the Employment Act. The appellant did nothing beyond citing pending police investigations, keeping the respondent on unpaid suspension indefinitely, which constitutes an unfair labour practice and constructive dismissal.
Justification of maximum 12 months' compensation
The trial court's award of the maximum 12 months' compensation was varied because reasons for the maximum award were not given.
Relying on Kenya Broadcasting Corporation v Geoffrey Wakio and Ol Pejeta Ranching Limited v David Wanjau Muhoro, the court held that a maximum award requires sound judicial principles and exceptional reasons. The respondent worked only for one year, so one month's compensation was found appropriate.
Salary during suspension
The award of 12 months' salary while on suspension (Ksh.120,000) was justified as the constructive dismissal arose from the appellant's inaction.
The court found that the appellant's continued suspension of the respondent without any action led directly to the proceedings, amounting to unlawful, unfair and constructive dismissal. Payment of wages during the suspension could not be denied, and the Ksh.120,000 award was upheld as justified.
Notice pay and July wage
Notice pay was justified at the correct wage of Ksh.15,142 per month, and the July wage for 20 days worked was computed at Ksh.10,100.
On the finding of unfair termination, notice pay is justified. The correct monthly wage was Ksh.15,142 based on the last payment statement, not the Ksh.10,000 claimed. The July wage for 20 days worked was computed proportionately at Ksh.10,100.
Legal principles established
#- An employer's suspension of an employee is an interim measure; the employee must be recalled within a reasonable time, and an indefinite suspension amounts to constructive dismissal.
- An award of the maximum 12 months' compensation must be justified on sound judicial principles and with exceptional reasons.
Court orders
#- 1.Notice pay Ksh.15,142
- 2.July wage Ksh.10,100
- 3.Compensation for unfair termination reduced to one month at Ksh.14,142 (recorded as 'months compensation Ksh.14,142' in the orders)
- 4.12 months' salary while on suspension Ksh.120,000 upheld
- 5.Each party to bear its own costs of the appeal; costs of the lower court as awarded
- On appeal from
- Mombasa CMELRC (Magistrates' Court)
- E340 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Total Security Surveillance Limited v Karibu (Appeal E044 of 2023) [2024] KEELRC 2331 (KLR)", Case Analysis (2024). Mombasa ELRC Appeal from Mombasa CMELRC E340 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2331/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.