Serem v JRS Group Limited (Cause E056 of 2023) [2024] KEELRC 499 (KLR)
The bottom line
#A Kenyan court ordered a security company to pay a former guard over Kshs 1.2 million because it couldn't prove he deserted his job and had no payroll records.
What this practically means
#Executive summary
#Key legal issues
#Unfair termination
The Court discounted the defence of desertion and found the termination unfair
The Respondent claimed the Claimant deserted after being instructed to attend refresher training before redeployment to Kisumu. The Respondent had the Claimant's contact details but made no meaningful attempt to contact him, and did not respond to a formal demand letter from his advocate. Desertion warrants summary dismissal only after a show cause or notice under section 35(1)(c) and an attempted disciplinary hearing under section 41 of the Employment Act, none of which occurred.
Underpayments, leave, overtime and house allowance records
These heads of claim were allowed because the Respondent produced no payroll, leave or pay records and gave the Claimant no written contract
Sections 20, 21 and 10(3) of the Employment Act require the employer to keep payroll and leave records; section 31 obliges the employer to provide housing or house allowance. The Respondent chose not to respond to the underpayment claim or produce pay records, and admitted it did not issue a written contract. As a security guard, the Claimant was subject to the Regulation of Wages (Protective Security Services) Order, 1998 limiting shifts, and judicial notice was taken that guards work 12-hour shifts, so overtime was clear.
Accrued leave quantum
Accrued leave awarded but restricted to the last 18 months of the contract
Section 10(3) requires the employer to maintain leave records to determine entitlement to annual leave. The Respondent did not place such records before the Court. Factoring in section 28(4) of the Employment Act, the Court restricted the award to the last 18 months, equivalent to one and a half months' salary.
Legal principles established
#- An employer alleging desertion must still issue show cause or notice under section 35(1)(c) and attempt a disciplinary hearing under section 41 of the Employment Act before summary dismissal
- Where an employer fails to keep the payroll, leave and pay records contemplated by sections 10(3), 20, 21, 28(4) and 31 of the Employment Act, adverse findings follow on the employee's claims
Court orders
#- 1.Declaration that the Respondent unfairly terminated the Claimant's employment and was in breach of contract
- 2.Payment of pay in lieu of notice of Kshs 14,038/-
- 3.Payment of underpayments of Kshs 441,359/-
- 4.Payment of accrued leave of Kshs 21,057/-
- 5.Payment of overtime of Kshs 425,257/-
- 6.Payment of house allowance of Kshs 214,781/-
- 7.Payment of December wages of Kshs 14,038/-
- 8.Payment of service pay of Kshs 81,252/-
- 9.Payment of deducted wages of Kshs 1,800/-
- 10.Total award of Kshs 1,213,582/4 to the Claimant
- 11.Costs of the Cause to the Claimant with interest from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and breach of contract/statute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Serem v JRS Group Limited (Cause E056 of 2023) [2024] KEELRC 499 (KLR)", Case Analysis (2024). Not stated in the judgment (Cause filed 4 August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/499/eng@2024-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.