Nyairo v Riley Falcon Securities Services Ltd (Employment and Labour Relations Claim 248 of 2015) [2022] KEELRC 4111 (KLR)
The bottom line
#A Kenyan court awarded a security guard Kshs 165,531 after his employer failed to prove he got notice or a fair hearing before dismissal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was terminated, deserted employment, or his fixed term contract expired by effluxion of time
- 2.Whether the termination was fair and justified under section 41 of the Employment Act
- 3.Whether the claimant is entitled to the reliefs claimed: notice pay, underpayments, overtime, public holidays, leave and compensation for unfair termination
Key legal issues
#Fairness of the termination
The dismissal was unfair and unjustified as no valid reason was demonstrated and no disciplinary hearing was held
The respondent alleged the claimant was terminated for refusing to report to a new station and refusing to attend a disciplinary hearing. However, the court found the respondent failed to prove service of the change-of-assignment letter, which was posted to Nakuru while the claimant worked in Naivasha. No minutes of any disciplinary hearing were produced, and the respondent never invited the claimant to one. Under section 41 of the Employment Act, no valid reason for dismissal was demonstrated.
Expiry of fixed term contract by effluxion of time
Rejected - the respondent's own defence pleaded dismissal for refusal to report to a new station, not effluxion of time; the contract expired on April 26, 2015 but the claimant was terminated on April 14, 2015
The respondent contended at submissions stage that the contract ended by effluxion of time on April 26, 2015, relying on Trocaire v Catherine Wambui Karuno. The court noted the fixed term contract dated April 26, 2014 ran for one year and that the claimant was terminated after/during it. The respondent's pleaded defence was dismissal for refusal to report to a new station and refusal to attend a disciplinary hearing, which it failed to prove.
Overtime claim
Not awarded; the respondent contended the contract gross pay was inclusive of overtime and payslips showed overtime payment when earned
The claimant claimed 4 hours' overtime per shift for 12-hour days. The respondent relied on clause 8.1 of the employment contract stating gross pay was inclusive of overtime, and on payslips showing overtime pay in some months and none in others. The claimant testified on re-examination that he was not paid overtime. The court did not award overtime in the final orders.
Underpayment claim
Awarded as pleaded at Kshs 31,065.60; the court accepted the claimant's underpayment claim
The claimant pleaded underpayment against the Wages Regulations (Legal Notice 197 of 2013) rates for day guards (Kshs 432.40 daily) and night guards (Kshs 487.90 daily). The respondent argued his pay of Kshs 10,992 exceeded the prescribed minimums. The court nonetheless awarded underpayment of wages as pleaded.
Legal principles established
#- An employer alleging that an employee refused to report to a new station must prove service of the reassignment letter on the employee
- Failure to afford an employee a disciplinary hearing renders a termination unfair under section 41 of the Employment Act
Court orders
#- 1.1 Month's salary in lieu of notice of Kshs 11,043.60
- 2.Underpayment of wages as pleaded of Kshs 31,065.60
- 3.Leave for 1 year and 4 months as pleaded of Kshs 12,986.40
- 4.10 months' salary as compensation for unfair and unlawful dismissal of Kshs 110,436
- 5.Total award of Kshs 165,531.60 less statutory deductions
- 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act relief claimed; no specific constitutional provision cited)
Relief refused
#Normal overtime
Not awarded in the final orders despite being pleaded; the court did not grant overtime pay
Public holidays pay
Not included in the final award
Costs
The respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The respondents have not demonstrated that they had valid reasons to dismiss the claimant.
I find the claimants dismissal was unfair and unjustified and I find for claimant and award him as follows;
4. 10 months salary as compensation for the unfair and lawful dismissal. = 10 x 11,043.60 = 110,436/=
The respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
Issues in the judgment
#Order 4 as printed reads 'compensation for the unfair and lawful dismissal' although the finding was that the dismissal was unfair and unjustified
The court's summary of the contract is internally inconsistent - it states the claimant was 'terminated after this' while the respondent's position was effluxion of time on April 26, 2015 and the claimant's position was termination on April 14, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyairo v Riley Falcon Securities Services Ltd (Employment and Labour Relations Claim 248 of 2015) [2022] KEELRC 4111 (KLR)", Case Analysis (2022). Memorandum of Claim dated December 4, 2015 (ELRC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4111/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.