Hatari Security Guards Limited v Dalu (Appeal E043 of 2024) [2025] KEELRC 1169 (KLR)
The bottom line
#Kenya's Employment Court confirmed a security guard was constructively dismissed after being denied work, but cut his compensation to five months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's resignation amounted to constructive dismissal
The Respondent was constructively dismissed because the Appellant ceased to supply work after losing the NSSF contract, evincing an intention not to be bound by the contract, and this conduct caused the resignation.
The court found the Appellant's assertion that employees were instructed to attend training in Nairobi was a bare assertion without cogent evidence, given the employees were stationed in Mombasa. Failure to supply work is a fundamental breach. The conduct directly caused the resignation. The trial magistrate erred by analysing procedural and substantive fairness, which are irrelevant to constructive dismissal, but the appellate court reached the same ultimate conclusion on fresh evaluation.
Whether the award of twelve months' gross salary as compensation was proper
The discretionary award required reasons; the appellate court exercised its own discretion and reduced compensation to five months' gross salary.
Section 49(1)(c) of the Employment Act confers a discretionary power that must be exercised with regard to the circumstances of each case. The trial magistrate granted twelve months' gross pay without setting out the factors considered. Considering that the Respondent did not contribute to the termination, his length of service, and that the situation was induced by the loss of the NSSF contract, five months' gross salary was appropriate.
Whether the Respondent was entitled to salary in lieu of notice
Yes; employment was terminable by twenty-eight days' notice under section 35 of the Employment Act and notice pay followed from the constructive dismissal.
Having successfully litigated the constructive dismissal claim, notice pay was a relief the Respondent was entitled to. The award of KShs. 17,413.24 was not disturbed.
Whether the claim for underpayment was made out despite contractual remuneration
Yes; minimum wages under a wages order constitute statutory terms of employment that cannot be varied by agreement, so the trial court did not err in applying the minimum wage.
Section 48(1) of the Labour Institutions Act provides that minimum rates of remuneration and conditions in a wages order constitute terms of employment and may not be varied by agreement. The Appellant's argument that the Respondent was paid his contractual remuneration ignored this provision. The Respondent's evidence that he was a night guard was not discounted since the Appellant's witness could not confirm otherwise.
Whether the overtime claim was proved absent worksheets
Yes; the legal duty to keep records and ensure compliance with working hours rested on the employer, so the trial court did not err in allowing the overtime claim.
The Regulations placed a legal duty on the employer to ensure employees did not exceed stipulated hours and to pay for overtime. Under section 74 of the Employment Act the employer is the custodian of employment records and was expected to produce worksheets. The contract did not stipulate hours of work, so under section 10 of the Employment Act the onus was on the Appellant to prove compliance, which it failed to do.
Legal principles established
#- A first appellate court must subject the evidence before the trial court to fresh scrutiny and reach its own independent findings and conclusions
- Failure by an employer to supply work to an employee is a breach of a fundamental term of the contract of employment capable of grounding constructive dismissal
- Minimum wages and conditions in a wages order cannot be contracted out and apply as terms of the contract of employment
- The employer is the custodian of employment records under section 74 of the Employment Act and bears the burden of producing worksheets to disprove overtime claims
Court orders
#- 1.The appeal succeeds to a limited extent
- 2.The Learned Trial Magistrate's award of twelve months' gross salary for unfair termination is disturbed and in place thereof five months' gross salary, KShs. 87,066.2, is awarded
- 3.Each party is to bear its own costs of this appeal
- On appeal from
- Principal Magistrate's Court
- not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Principal Magistrate's Court in an employment matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hatari Security Guards Limited v Dalu (Appeal E043 of 2024) [2025] KEELRC 1169 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 18th March 2024 (ELRC Appeal from Principal Magistrate's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1169/eng@2025-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.