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ELRCPartially AllowedMombasa ELRC Appeal from Mombasa CMELRC E340 of 2021· [2024] KEELRC 2331 (KLR)

Total Security Surveillance Limited v Karibu (Appeal E044 of 2023) [2024] KEELRC 2331 (KLR)

Employment and Labour Relations Court
26 September 2024
1,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of 11 May 2023 in Mombasa CMELRC E340 of 2021, which found that the respondent, a security guard employed on 12 August 2019, was constructively and unfairly dismissed and awarded terminal dues. The respondent was suspended indefinitely without pay on 20 July 2020 following a theft incident at his station, pending police investigations that remained pending. The appellant argued the suspension was procedural and that the respondent's continued absence was self-instigated termination. The court, re-evaluating the record as a first appellate court, held that suspension is only an interim measure and that keeping an employee on indefinite suspension amounts to constructive dismissal constituting unfair termination, contrary to the protections of Section 41 of the Employment Act. It found the trial court's findings could not be faulted but varied the quantum: it corrected notice pay to Ksh.15,142 based on the actual wage, computed the July wage at Ksh.10,100 for 20 days worked, reduced the maximum 12 months' compensation to one month (Ksh.15,142, recorded as Ksh.14,142 in the orders) for lack of exceptional reasons justifying the maximum award, and upheld the Ksh.120,000 award for salary during suspension. The appeal was partially successful; each party bears its own costs of the appeal, with the trial court's costs order left intact. Judgment delivered at Mombasa on 26 September 2024 by M. Mbarũ, Judge.

Key legal issues

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01

Indefinite suspension as constructive dismissal

Holding

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.

Reasoning

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.

p. 3
02

Justification of maximum 12 months' compensation

Holding

The trial court's award of the maximum 12 months' compensation was varied because reasons for the maximum award were not given.

Reasoning

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.

p. 4
03

Salary during suspension

Holding

The award of 12 months' salary while on suspension (Ksh.120,000) was justified as the constructive dismissal arose from the appellant's inaction.

Reasoning

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.

p. 4
04

Notice pay and July wage

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Notice pay Ksh.15,142
  2. 2.July wage Ksh.10,100
  3. 3.Compensation for unfair termination reduced to one month at Ksh.14,142 (recorded as 'months compensation Ksh.14,142' in the orders)
  4. 4.12 months' salary while on suspension Ksh.120,000 upheld
  5. 5.Each party to bear its own costs of the appeal; costs of the lower court as awarded

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (10)

  • Victoria De Meo v Abdullahi H Khalil & another
    [1994] eKLR
  • Jackson Muiruri Wathigo t/a Murton Supermarket v Lilian Mutune
    [2021] eKLR
  • Sava v Kitui Cottages and Guest House (Cause 1280 of 2017)
    [2022] KEELRC
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Benjamin Menza Kirimo v Kilifi County Public Service Board & another
    [2021] eKLR
  • Mutwol v Moi University (Civil Appeal 118 of 2019)
    [2022] KECA 537 (KLR)
  • Joseph Ndungu v Mastermind Tobacco (K) Ltd
    [2014] eKLR
  • Bryan Mandila Khaemba v Chief Justice and President of the Supreme Court of Kenya & another
    [2019] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
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

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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, "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.