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IndustrialPartially AllowedCause No 1617 of 2011· [2014] KEIC 105 (KLR)

Mwania v Spur Security Services Limited (Cause 1617 of 2011) [2014] KEIC 105 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
16 July 2014
NMNzioki Wa Makau
418 words in judgment
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The bottom line

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A Kenyan court ruled a watchman's dismissal unfair because his employer never explained it or gave him a hearing, awarding him compensation.

What this practically means

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Executive summary

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The Claimant sued on 23rd September 2011 alleging he was employed by the Respondent as a watchman from 12th June 2006 until 22nd August 2009, when he was asked to leave by the Respondent's personnel manager, Mr. Peter Wasike, on reporting for work. He sought a declaration that the dismissal was wrongful, damages for unlawful termination, pay in lieu of leave, severance pay, overtime pay, public holidays pay, off days, underpayment of wages, house allowance, accumulated rights and a certificate of service, plus costs. The Respondent did not enter appearance or file a defence despite service, and interlocutory judgment was entered on 1st July 2014, with the matter proceeding by formal proof. The court found the dismissal unfair under Section 45 of the Employment Act because the Claimant was not advised of the cause of termination nor accorded the Section 41 safeguards. The court adopted a monthly salary of Kshs. 6,839/-, holding the Claimant entitled to one month's notice pay (Kshs. 6,839/-), severance pay for years worked (Kshs. 10,258.50), six months' salary as compensation for unlawful termination (Kshs. 41,034/-), a certificate of service, and costs at the lower scale. Claims for overtime, leave days, public holidays, off days, underpayment and house allowance failed for want of evidence, the court noting the underpayment suggestion was not backed by testimony and that no evidence was adduced on those heads. The judgment was delivered at Nairobi on 16th July 2014 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Unfair termination contrary to Sections 41 and 45 of the Employment Act

Holding

The dismissal was unfair as the Claimant was neither advised of the cause of termination nor accorded the procedural safeguards under Section 41

Reasoning

The Claimant testified he was employed from 12th June 2006 and dismissed in August 2009 without any explanation. The court found the termination was not in accordance with procedure, so the dismissal was unfair within the meaning of Section 45 of the Employment Act. The Respondent having not entered appearance or filed a defence, the claim proceeded on formal proof, and the unchallenged testimony established unfair termination.

p. 1
02

Burden of proving monetary claims such as overtime, leave, public holidays and underpayment

Holding

Claims for overtime, leave days, public holidays, off days and underpayment failed for want of evidence

Reasoning

Although the Claimant annexed a document showing NSSF and NHIF dues were unpaid, the suggestion of underpayment was not backed by evidence or testimony. The Claimant gave no figure of his salary at the time of dismissal and adduced no evidence on overtime, leave days, public holidays or off days not taken, so those heads of claim failed.

p. 2

Legal principles established

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  • A termination effected without notifying the employee of the cause and without affording the safeguards under Section 41 of the Employment Act is unfair within the meaning of Section 45

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 6,839/-
  2. 2.Severance pay for years worked of Kshs. 10,258.50
  3. 3.Six months' salary as compensation for the unlawful termination of Kshs. 41,034/-
  4. 4.Certificate of service
  5. 5.Costs of the suit at the lower scale

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Section 45 and Section 41 Employment Act invoked; no specific jurisdictional provision cited)

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, "Mwania v Spur Security Services Limited (Cause 1617 of 2011) [2014] KEIC 105 (KLR)", Case Analysis (2014). Cause No 1617 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/105/eng@2014-07-16

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