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ELRCPartially AllowedMemorandum of Claim dated May 10, 2016 (ELRC cause, Nakuru)

Ng’ang’a v Robinson Investment Ltd T/A Robinson Security Guards (Employment and Labour Relations Cause 169 of 2016) [2022] KEELRC 4106 (KLR)

Employment and Labour Relations Court
29 September 2022
4,160 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled firing a worker over one week's absence without notice or a hearing was unfair, awarding her 12 months' pay.

What this practically means

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Executive summary

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In this first-instance ELRC cause at Nakuru, the claimant, engaged as a security guardette by letter dated September 30, 2006 at Kshs 2,500 monthly, sued for notice pay, salary arrears, leave pay, overtime, public holiday pay, maternity pay, gratuity, compensation for unfair termination and a certificate of service. The respondent asserted she deserted duty on January 25, 2016, issuing an unserved notice of desertion, and at trial RW1 shifted position to allege the claimant was a casual general worker. The court rejected the casual-worker claim as contradicted by written evidence, holding the claimant was a guardette who performed clerical duties on need basis, and censured RW1's testimony as false. On termination, the court found the claimant overstayed leave by only about a week, that no desertion notice was served, and that termination without notice, hearing or reasons breached sections 35, 41 and 43 of the Employment Act, rendering the dismissal unreasonable, unfair and unlawful. One month's notice pay of Kshs 10,925 (salary of Kshs 9,500 plus 15% house allowance) and maximum compensation of twelve months' gross salary (Kshs 131,100) under section 49 were awarded. Claims for underpayment, leave, overtime, holiday and maternity pay failed on the burden of proof under sections 107-109 of the Evidence Act, as did gratuity, not proved contractual. A certificate of service was ordered within 30 days, with costs to the claimant; all other reliefs were dismissed. Judgment delivered virtually on September 29, 2022 by D. Nderitu J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.What was the nature of the employment relationship between the claimant and the respondent?
  2. 2.Was the termination of the claimant by the respondent unfair and unlawful?
  3. 3.Is the claimant entitled to the reliefs sought?
  4. 4.Costs

Key legal issues

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01

Nature of the employment relationship

Holding

The claimant was a guardette employed from October 6, 2006, not a casual worker or formally a clerk; she was directed to perform clerical duties on need basis

Reasoning

The court relied on the application letter endorsed with appointment as guardette at Kshs 2,500/month. RW1's casual-worker allegation was unsupported and contradicted written evidence under sections 97 and 98 of the Evidence Act. Although leave forms showed her as clerk/acting secretary, no promotion letter existed, so the court went by the documentary evidence of the guardette position.

p. 4
02

Fairness of the termination

Holding

The dismissal was unreasonable, unfair and unlawful; the claimant did not desert duty

Reasoning

The claimant overstayed her leave by about one week. No desertion notice was served and no efforts to trace her were shown. Termination for one week's absence without notice, hearing or reasons breached sections 35, 41 and 43 of the Employment Act; a warning or lesser measure would have sufficed. The respondent failed to prove desertion without intention to resume, per Radido J in Philomena Kiprotich Kirui v Lesos Veterinary Suppliers Ltd.

p. 6
03

Burden of proof on claims for unpaid leave, overtime, holidays and maternity pay

Holding

Claims denied because the claimant failed to discharge the burden of proof under sections 107, 108 and 109 of the Evidence Act

Reasoning

While sections 10 and 74 of the Employment Act oblige employers to keep records, they do not require automatic production in court. The claimant produced no payslips, M-Pesa or bank statements and did not seek a notice to produce or summons. The presumption that unproduced records would be adverse to the employer was not treated as displacing the statutory burden on the party alleging.

p. 7
04

Compensation under section 49(1)(c)

Holding

Maximum 12 months' gross salary awarded as compensation, computed on the last gross salary of Kshs 10,925

Reasoning

The court applied section 49(4) factors: the claimant did not secure other employment, was denied a hearing, and the dismissal for one week's absence was excessive, illogical and unreasonable; the respondent also failed to pay terminal dues voluntarily. Gross salary included 15% house allowance: Kshs 9,500 + 15% = Kshs 10,925, multiplied by 12 to give Kshs 131,100, subject to statutory deductions.

p. 8

Legal principles established

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  • An employer's allegation that an employee was a casual worker cannot contradict or override written documentary evidence of appointment
  • Termination for absence of about one week without notice, hearing, or reasons breaches sections 35, 41 and 43 of the Employment Act and is excessive and unreasonable
  • The employer's duty to keep employment records under sections 10 and 74 of the Employment Act does not oblige it to suo motu produce them in court; the claimant must prove non-payment or use notice to produce
  • Gratuity is not a right and is paid voluntarily or where provided for in the contract

Court orders

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  1. 1.A declaration that the dismissal of the claimant by the respondent was unreasonable, unfair, and unlawful
  2. 2.One month's gross salary in lieu of notice of Kshs 10,925.00
  3. 3.Compensation for unfair and unlawful termination of Kshs 131,100.00 (total Kshs 142,025.00, subject to statutory deductions)
  4. 4.Respondent to issue and deliver a certificate of service to the claimant within 30 days of the judgment
  5. 5.Costs of the cause to the claimant
  6. 6.All other reliefs not specifically awarded denied and dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims

Relief refused

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Accumulated underpayment of monthly salary (Kshs 557,800.50)

Claimant did not avail evidence of the basic minimum monthly wage for a guardette at each stage of employment

p. 7

Accumulated annual leave pay (Kshs 33,070.25)

Claimant failed to prove non-payment; burden of proof under section 107 of the Evidence Act

p. 7

Accumulated overtime pay (Kshs 435,333.55)

Denied for the same reasons of failure of proof

p. 7

Accumulated pay for public holidays worked (Kshs 88,268.60)

Denied for the same reasons of failure of proof

p. 7

Three months' pay for maternity leave (Kshs 29,600.25)

Denied for the same reasons of failure of proof

p. 7

Gratuity (Kshs 105,129.90)

Gratuity is not a right; claimant did not prove it was provided for in the contract

p. 8

Costs

Costs follow the event and the claimant is awarded costs of this cause to be agreed on or taxed in the usual manner

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A declaration be and is hereby issued that the dismissal of the claimant by the respondent was unreasonable, unfair, and unlawful
p. 8Declaration on unfair termination
One month’s gross salary in lieu of notice - Kshs 10,925.00 (ii) Compensation for unfair and unlawful termination - Kshs 131,100.00 Total - Kshs 142,025.00
p. 8Final awards
All the other reliefs not specifically awarded are denied and dismissed.
p. 8Dismissal of other reliefs
the action taken by the respondent to terminate the claimant based on the alleged absence from duty for about seven (7) days was illogical, excessive, and unreasonable
p. 6Proportionality of dismissal
The claimant was not issued with a notice of dismissal, no hearing was held, and no reasons were given for the dismissal.
p. 6Procedural fairness
This type of blatant falsehood need not be told in a court of law.
p. 5Credibility of RW1

Issues in the judgment

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minor

Typographical errors in judgment, e.g. 'vail' for 'avail' and misstated claim figure

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, "Ng’ang’a v Robinson Investment Ltd T/A Robinson Security Guards (Employment and Labour Relations Cause 169 of 2016) [2022] KEELRC 4106 (KLR)", Case Analysis (2022). Memorandum of Claim dated May 10, 2016 (ELRC cause, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4106/eng@2022-09-29

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