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ELRCPartially AllowedELRCA E095 of 2024 (consolidated with ELRCA E089, E090, E091, E092, E093, E094, E096, E097 and E100 of 2024)· [2024] KEELRC 2618 (KLR)

Radar Limited v Mwadime & 8 others (Appeal E095, E089, E090, E091, E092, E093, E094, E096, E097 & E100 of 2024 (Consolidated)) [2024] KEELRC 2618 (KLR)

Employment and Labour Relations Court
24 October 2024
3,867 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled a security guard's redundancy was unfair because his employer never gave him notice before terminating him.

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 judgments of the Voi magistrates' court delivered on 26 April 2024 in consolidated causes, the principal claim being that of Paul Matenge Mwadime, a security guard employed by Radar Security Limited from June 2017 until termination by redundancy in April 2020. The trial court found unfair termination and awarded five months' compensation, leave pay, house allowance, overtime and costs. The appellant challenged the findings on burden of proof, compensation, leave pay under Section 28(4), house allowance under the Wage Orders, overtime and costs. The court upheld the finding of unfair termination: the redundancy notices to the union and County Labour Commissioner were dated 30 November 2020, months after employment had effectively ceased on 8 April 2020 per the certificate of service, and no notice of intended redundancy was issued to the affected employee, contrary to Sections 40, 43 and 45 of the Employment Act; following Cargill Kenya Limited v Mwaka, consultation is implicit in Section 40. On quantum, the court held leave accrues only for 18 months absent leave records; found the wage paid exceeded the gross minimum inclusive of house allowance and overtime, so further awards would unjustly enrich the respondent; and held that under the Regulation of Wages (Protective Security Services) Order, 1998, service pay is due despite payment of statutory dues. On costs, the court held the trial court should have given reasons under Section 12(4) of the ELRC Act but let the award stand. The trial judgment was reviewed: compensation of Kshs 89,100, notice pay of Kshs 17,820 and service pay of Kshs 53,460 awarded; each party to bear its own costs of the appeal; and the judgment applies to the nine consolidated appeals.

Key legal issues

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01

Procedural fairness in redundancy under Section 40 of the Employment Act

Holding

The termination was unfair: no notice of redundancy was issued to the affected employee, and the redundancy notices post-dated the actual termination

Reasoning

The court found the notice to the union and County Labour Commissioner was dated 30 November 2020, yet employment had ceased by certificate of service on 8 April 2020. A redundancy notice issued months after termination cannot validate it. Notice to the union and labour office must be followed by notice to the affected employees. Termination before completion of unpaid leave and receipt of notices was premature and contrary to Sections 40, 43 and 45.

p. 6
02

Accrued leave pay under Section 28(4) of the Employment Act

Holding

Leave accrues only up to 18 months where no work records on leave allocation are produced

Reasoning

Taking annual leave is a right under Section 28. Where leave accrues over years, at the end of employment, absent proof of application and refusal, accrual is capped under Section 28(4). With no work records submitted on leave allocation, the claim goes back only 18 months, totalling 33 days, assessed at Kshs 19,602.

p. 7
03

Overtime and house allowance where wages exceed minimum Wage Orders

Holding

The wage paid was over and above the gross minimum inclusive of house allowance and overtime; further payment would unjustly enrich the respondent

Reasoning

The applicable Wage Order for Voi set a minimum wage of Kshs 6,896.15 plus 15% house allowance; the respondent earned Kshs 17,820. The court found the wage covered house allowance and overtime, so payment beyond received wages would result in unjust enrichment.

p. 7
04

Costs on appeal

Holding

The trial court's award of costs stands; each party bears own costs of the appeal

Reasoning

Award of costs is discretionary and the court should not interfere absent compelling reasons. Although the trial court should have given reasons, the circumstances leading to loss of employment, including the appellant's failure to submit key records, justified the award.

p. 8

Legal principles established

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  • Notice to the union and labour office under Section 40(1) of the Employment Act must be followed with notice to the affected employees
  • Employer must produce work records under Section 10 of the Employment Act; failure to do so weakens denial of overtime claims
  • A court should give reasons for awarding costs; costs do not automatically follow the cause under Section 12(4) of the ELRC Act
  • Under the Regulation of Wages (Protective Security Services) Order, 1998, service pay is payable despite the employer paying statutory dues

Court orders

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  1. 1.Judgment in Voi MCELRC E012 of 2023 reviewed: compensation at 5 months gross wage Kshs 89,100
  2. 2.Notice pay Kshs 17,820
  3. 3.Service pay Kshs 53,460
  4. 4.Costs of the lower court proceedings awarded; for the Appeal, each party to bear its own costs
  5. 5.The judgment applies to Appeals No E089, E090, E091, E092, E093, E094, E096, E097 and E100 of 2024

Authorities

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Legislation

  • Employment ActSections 10, 27, 28, 28(2), 28(4), 35(6), 40, 40(1), 40(1)(a) and (b), 43, 45, 47(5), 49, 49(1)
  • Evidence ActSection 107
  • Employment and Labour Relations Court ActSection 12(4)
  • Regulation of Wages (General) (Amendment) Orders2017, 2018-2020 wage orders
  • Regulation of Wages (Protective Security Services) Order, 1998
  • Labour Relations Act
  • ILO Convention 132Article 10

Cases cited (15)

  • Togom v Radar Limited [2024] eKLR
    [2024] eKLR
  • Radar Limited v Daniel Jomo Machera [2022] eKLR
    [2022] eKLR
  • Luka Mbuvi v Economic Industries Limited [2020] eKLR
    [2020] eKLR
  • Ngunda v Ready Consultancy Limited Civil Appeal 129 of 2019
    Civil Appeal 129 of 2019
  • Shanga Kitsao Mumbasa v Mabati Rolling Mills [2017] eKLR
    [2017] eKLR
  • BIFU v Maisha Bora Sacco Society Ltd [2018] eKLR
    [2018] eKLR
  • Walwanda v Radar Security Limited [2022] eKLR
    [2022] eKLR
  • Jared Mangera & 11 others v Professional Clean Care Limited [2018] eKLR
    [2018] eKLR
  • Hesbon Ngaruiya Waigi v Equatorial Commercial Bank Limited [2013] eKLR
    [2013] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union (Kenya) & 3 others [2014] eKLR
    [2014] eKLR
  • Ahamed Mwarunmba Mwavita v Kocos Kenya Limited [2021] eKLR
    [2021] eKLR
  • Cargill Kenya Limited v Mwaka & 3 others (Civil Appeal 54 of 2019) [2021] KECA
    (Civil Appeal 54 of 2019) [2021] KECA
  • Kenya Union of Commercial Food and Allied Workers v Nerix Pharma Limited ELRC Cause No E 532 of 2021
    ELRC Cause No E 532 of 2021
  • Charles Nyaringo Rianga v Hatari Security Guards [2019] eKLR
    [2019] eKLR
  • Yaa v SGA Security Solutions Limited (Employment and Labour Relations Appeal E002 of 2022) [2022] KEELRC
    (Employment and Labour Relations Appeal E002 of 2022) [2022] KEELRC
On appeal from
Voi Magistrates' Court (MCELRC)
Voi MCELRC No E012 of 2023 (and E006, E009, E010, E011, E013, E007, E004, E005 of 2023)
Jurisdiction invoked
First appeal from the magistrates' court under the Employment and Labour Relations Court Act (appeals to the ELRC under its appellate jurisdiction)

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, "Radar Limited v Mwadime & 8 others (Appeal E095, E089, E090, E091, E092, E093, E094, E096, E097 & E100 of 2024 (Consolidated)) [2024] KEELRC 2618 (KLR)", Case Analysis (2024). ELRCA E095 of 2024 (consolidated with ELRCA E089, E090, E091, E092, E093, E094, E096, E097 and E100 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2618/eng@2024-10-24

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