https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1549

**REPUBLIC OF KENYA** IN THE EMPLOYMENT AND LABOUR RELATION COURT, NAIROBI CAUSE NO. 942 OF 2018 **KENYA N.P. S. W. U………………...……………………..CLAIMANT** **-VERSUS-** **GYTO SUCCESS COMPANY LIMITED……………..RESPONDENT** **JUDGMENT** 1. By undated memorandum of filed on 13th June, 2018 the claimant pleads inter alia:- 1. The Claimant is duly registered under **Section 19** of the Labour Relations Act 2007 Laws of Kenya and it’s the sole Labour Organization mandated to represent the industrial interests of employees engaged/employed in the Private Security Industry. 2. The Respondent is duly registered security provider and for purposes of this suit is through Gyto Security Limited P.O Box 19792-00200 Nairobi 3. The Grievant who is a member of the Union was employed by the Respondent on 1st October 2013 as a Security Guard at an initial salary of Kshs 8,000 per month. 4. The Respondent did not bother to pay the Grievant the statutory minimum wage as required by Government and neither did the Respondent pay the Grievant his house allowance and standard overtime. 5. The Grievant worked diligently until 11th July 2015’;' when he was unfairly terminated by the Respondent without following the required procedures and provided in the Employment Act. 6. The Claimant on behalf of the Grievant wrote to the Respondent following the decision to terminate his service and the Union requested for his terminal dues as elaborated in the letter dated 22nd July 2015 7. The Respondent was uncooperative in resolving the issues amicably prompting the union to report a dispute to the Ministry of Labour vide the union’s letter dated 22nd February 2016. 8. The Claimant avers that they initiated negotiations through the Ministry of Labour and social protection, however the Respondent despite being served severally and having refused receipt of the letters inviting them for conciliation failed to attend the conciliation meetings as scheduled by the Ministry of Labour. 9. That on 1st February 2018 the claimant submitted its memorandum but for unknown reasons the Respndent did not submit its memorandum. 10. A certificate dated 7th March 2018 was issued for the next level of arbitration. 11. The claimant union avers that the Respondent’s action flouted the Constitution, the provisions of the Employment Act, the tenets of good Labour practice and the principles of natural justice in that: 1. The Grievant was denied an opportunity to be heard and to be represented as the law requires. 2. The Respondent acted in a rush and extremely inconsiderate manner. 3. All the requirements of the law were thrown out in the haste to terminate the grievant. 2. The Claimant avers that it is the Grievant’s case that the termination of his employment was unlawful and unjustifiable. There were no lawful grounds for his termination. 3. The claimant therefore prayed for: 4. *A* *declaration that the Respondent’s action of dismissing the Grievant from* *employment was illegal, unlawful, unfair and in human.* 1. *One month’s salary in lieu of Notice=kshs 12,221.* 2. *12 month’s salary in compensation for unfair Termination.* *Kshs 12,221 x 12 = Kshs 146,652.* 1. *Gratuity/Severance pay =Kshs 12,221 x 18 x 5 =kshs 42,303.* *26 day* 1. *Leave days earned and not taken. 12,221 x 5=61,105* 2. *House allowance 15% x 12,221= 1833 x l2 months x 5years=109,980* 3. *Public Holiday = 12,221 x 12hrs x 11 days x 5years /225hrs =35,848* 4. *Overtime = 12,221 x 87hrs x 1.5 x5/225= 35,440.* 5. *An order for the Respondent to pay the Claimant’s Costs* 6. The respondent through a memorandum of response dated 23rd September, 2024 pleaded among others that:- 7. The Respondent admits the contents of paragraph 3 of the Memorandum of Claim but only to extent that she employed the Grievant as a Security Guard on 1st October 2013 at an initial gross salary of Kshs. 8,000/- per month which she states was inclusive of house allowance. 1. The Respondent denies the contents of paragraph 4 of the Memorandum of Claim and in particular denies that she did not bother to pay the Grievant the statutory minimum wage and neither did she pays him his house allowance and overtime. The Claimant is put to strict proof thereof. 1. The Respondent denies the contents of paragraph 5 of the Memorandum of Claim and in particular denies that the Grievant worked diligently until 11th July 2015 when he was unfairly terminated without following the required procedures provided in the Employment Act. The Claimant is put to strict proof thereof. 1. The Respondent admits the contents of paragraph 6 of the Memorandum of Claim save for the averment that the Grievant's services were terminated and that he was entitled to any terminal dues. The Respondent shall at the hearing insist on strict proof thereof. 1. From the foregoing, the Respondents submits that: 1. The Grievant voluntarily resigned from his employment and at no time was he unfairly and unlawfully terminated as alleged. b) The Grievant was treated fairly during the course of his employment and even upon his resignation from employment. c)The Grievant is not entitled to house allowance since the salary paid was inclusive of house allowance. d) The Grievant had taken all his leave days before he resigned. e) The Grievant is not entitled to any public holidays pay as he took leave on all holidays and where not taken, the same was duly paid. Further, the Claimant has not particularized the public holidays worked but not paid. f)The Grievant is not entitled to any overtime as he never worked overtime. g)That the Claimant is not entitled to Severance pay since he was not declared redundant. **EVIDENCE** 1. At the trial, the claimant gave evidence and adopted his witness statement and documents both dated 13th June, 2018 and further stated that he was stopped from working by his supervisor and that there was no disciplinary hearing. 2. In cross- examination he stated that he was employed in October, 2013 and that no written contract was signed immediately upon employment and that written contracts came later. He left employment two years later and that he was employed in 2010. It was the grievant’s evidence that he was never issued with a termination letter when he left employment. He denied that he resigned and that he did not know how to read and write. Regarding his salary, he stated that he was paid Kshs. 8,000/- per month and was later increased to Kshs. 9,000/-. It was further his evidence that during employment, he never went on leave and that he worked during public holidays and that overtime was never paid for. 3. In reexamination he stated that he was employed in 2010 and that he was terminated in July, 2015. The supervisor told him and his colleagues to go home and that they would be called back. He clarified that they were never issued with payslips and that they were never paid in lieu of leave and that they were never taken through any disciplinary hearing before termination. 4. The respondent on its part called one witness. She stated that her name was Zippporah Mageto and that she worked as a Human Resource Officer for the respondent. She relied on her witness statement dated 31st October, 2024 and the documents filed in opposition to the claim. 5. In cross-examination she stated that she had worked for the respondent for a year and that she was the custodian of respondent’s documents and further that she never met the grievant. She stated that the grievant and his colleagues worked for approximately three years and that the respondent produced the written contracts. It was her evidence that she was not aware of any oral contracts. She stated that the respondent issued payslips though they were not filed in court. She confirmed that the grievant was paid Kshs. 9,000/- per month and that they used to work. From 8:00 a.m to 5:00 p.m but if one worked up to 6:00 p.m they were paid overtime. She however confiremd that the respondent had not filed any evidence in support. According to her, the minimum wage was Kshs. 6,415/- and that the rest catered for overtime and that the house allowance was included in the pay. Ms. Mageto further confirmed that the respondent did not produce any resignation letter by the grievant and that he verbally resigned. 6. In reexamination she reiterated that the grievant verbally informed the respondent of his resignation and that guards worked for eight hours and if any worked overtime, they were paid. **SUBMISSIONS BY THE CLAIMANT** 1. In his submissions in support of the claim, Ms. Wanyama for the claimant submitted among others that the grievant clearly stated that he was unfairly terminated by the respondent both in his witness statement and oral testimony before the court. The termination letter dated 1st February, 2018 which was unsigned was therefore not an official letter from the grievant. Further, the letter was not signed by the claimant’s National Secretary General and not on their official letterhead. According to counsel, no evidence was produced to confirm the claim that the respondent resigned. 2. According Ms. Wanyama, the grievant was unfairly terminated contrary to the provisions of section 45(1) and (2) of the Employment Act. No reason or justification for the termination was offered by the respondent and that the termination was carried out through an unfair procedure. Counsel further submitted that no evidence was tabled before the court that the grievant resigned from employment. Concerning leave and overtime, counsel submitted that apart from merely alleging that the grievant and his colleagues were paid overtime and that they went on leave, no evidence was produced to support the allegation. 3. Regarding the reliefs sought, counsel submitted that the grievant having worked for three years deserved 12 months’ salary as compensation for unfair termination of service and further that the grievant not having been paid standard overtime, leave pay, public holiday work, house allowance and gratuity was entitled to be awarded all the claims under these heads. Further, the grievant stated that he was paid Kshs. 8,000/- per month which was below the stipulated minimum wage. **SUBMISSIONS BY THE RESPONDENT** 1. Mr. Mugo for the respondent on the other hand submitted that under section 47(5), the burden of proving unfair termination rested with the employee while the burden of justifying reason for the termination rested on the employer and further submitted that the employee must first prove that unfair termination took place before calling upon the empolyer to justify the termination. In this. regard counsel relied on the case of **Omar Ndaro Zuma v. Modern Coast Express [2019] eKLR**. Counsel further submitted that in the pleadings, witness statement and evidence in court, the grievant averred that he was unfairly terminated however he did not furnish the details of how it happened and the circumstamces leading to the termination. According to counsel, the claimant’s own evidence showed the grievant resigned which in essence corroborated the respondent’s evidence. Counsel further submitted that by the claimant alleging that the letter was not from the grievant by not being signed and not on a letterhead was an afterthought aimed at deceiving the court. According to counsel, the letter was produced by the claimant while fully aware of its contents. According to counsel, the claimant never denied the letter during his oral evidence hence that same cannot be submitted during submissions. Counsel therefore reiterated that the grievant resigned from employment and relied on the case of **Edwin Beiti Kipchumba v. National Bank of Kenya [2018]eKLR.** 2. On the issue whether the claimant is entitled to the releifs sought on behalf of the grievant, counsel submitted that the claimant was not entitled to any. To support this, counsel submitted that the grievant was not unflairly terminated hence not entitled to one month’s pay in lieu of notice of termination and compensation for unfair termination. On the claim for gratuity and severance pay, the claimant was not entitled to the same since the greivant was never declared redundant. Regarding the claim for leave, house allowance and overtime, counsel submitted that these were time barred hence untenable. The grievant left employment on 11th July, 2015 and the claim was filed on 13th June, 2018. These, according to counsel, were continuing injuries and were payable only if the claim was brought within a year after cessation thereof. Counsel relied on section 90 of the Employment Act and the case of **Gichuru v. Emmanuel Trading Company Ltd [2024] KEELRC 2758.** DETERMINATION AND DISPOSITION 1. The issue in dispute in this matter is whether the grievant resigned from employment, hence barred from claiming that he was unfairly terminated. The grievant has not pleaded that he was contructively dismissed so that if the court were to find that he resigned, it was out of intolerable working environment that left him with no option but to resign. Reference has been made in the submissions to the unsigned letter of resignation from the grievant however the court has perused the record and has not found any. Further, during trial, the grievant merely denied resigning and stated that he was illetrate hence could not have resigned in writing. The respondent’s witness on the other hand allegd that the grievant resigned but did not produce the letter of resignation as part of employment records required of the respondent under section 74 of the Employment Act. The court further notes that this dispute was referred to the Minister under the Labour Relations Act for conciliation however the respondent despite several invitation to attend conciliation meetings, ignored and or failed to attend leading to the conciliator issuing a certificate of an unresolved dispute as a precursor to filing the instant claim. 2. Under section 47(5) of the Employment Act, the onus of proof that an unfair termination has occurred is on the employee whilst the onus of justifying the reason for the termination is on the employer. The grievant through its union (the claimant herein) alleged he was unfairly terminated. He esclatated his allegation by presenting the dispute to his union, the claimant herein. The union even attempted private prosecution but later referred the matter for conciliation as provided under the LRA. In all these occasions, the respondent never appeared to defend itself over the allegations by the grievant that he was unfairly terminated. Further, the respondent claimed the grievant resigned but did not produce the letter of resignation from the grievant to support the allegation as required of it by law as the custodian of employment records. From the foregoing, the Court is left with no choice but to believe the claimant’s allegation that the grievant was unfairly terminated and the Court so finds. 3. The Court having found as above that the grievant was unfairly terminated as above, the next question is whether the reliefs sought are tenable in their entirety or some of them only. From the statement of claim, the claimant pleades on behalf of the grievant: 1. One month’s salary in lieu of notice- Kshs. 12,221/-; 2. 12 months’ salary as compensation for unfair termination-Kshs. 146,652;/- 3. Gratuity/severance pay-Kshs. 42,303/-; 4. Leave days earned and not taken-Kshs. 61,105/-; 5. House allowance-Kshs. 109,980/-; 6. Public Holidays worked- Kshs. 35,848/- and; 7. Overtime Kshs. 35,440/-. Concerning the minumum wage for the security industry that the grievant was employed in, the gazetted minimum wage at the time he was employed was as pleaded. That is to say Kshs. 12,221/ which implied the respondent was underpaying him. 1. This claim as was rightly submitted by the respondent was filed on 13th June, 2018 yet the claimant pleaded that the grievant was terminated on 11th July, 2015. Therefore the claims under items (d), (e), (f) and (g) in paragraph 17 above, being considered as continuing injuries, will not be available for award by virtue of section 90 of the Employment Act. They are therefore rejected. 2. The claim for 12 months’ salary as compensation will be adjusted to six months’ salary due to the fact that the grievant had no special skills and illetrate and could be available for any menial work. The claim for gratuity and severance pay will also be disallowed due to the fact that the claimant did not present any evidence he was entitled to gratuity. In the case of *Kenga v Petrocity Enterprises Limited [2025] KEELRC2495 (KLR)* where the court stated:- *“* gratuity is not a statutory benefit. It is a contractual benefit or one that can flow from a practice within an enterprise. The Claimant admitted that his contract of service did not provide for gratuity. He asserted that his claim under this head was anchored on a practice within the Respondent company. In my view, the assertion was a bald assertion without sufficient evidential support. I reject the claim. ” I cannot agree more. The claim for severance pay will also be disallowed for the reason that the grievants service was not terminated on account of redundancy. 1. In Conclusion the claim is found successful and the court finds and holds as follows:- 1. The grievants service was unfairly terminated by the respondent. 2. As a result the court awards him a consolidated sum of Kshs. 85,547/- as itemised under (a) and (b) in paragraph 17 above with item (b) adjusted to six months’ salary. 3. The claimant shall further have expenses of prosecuting this claim on behalf of the grievant to be verified by the Deputy Registrar of the Court. 2. It is so ordered. **Dated at Nairobi this 5th day of June, 2026** **Delivered virtually this 5th day of June 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**