[2023] KEELRC 2817 (KLR)

Protective Custody Limited v Omukuba (Appeal E036 of 2021) [2023] KEELRC 2817 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 2817 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Appeal E036 of 2021

CN Baari, J

November 9, 2023

Between

Protective Custody Limited

Appellant

and

Tom Omunabi Omukuba

Respondent

(Being an appeal from the Judgment and Decree of Hon. R. K. Ondieki delivered on 23rd September, 2021 in Kisumu CMCELR Cause No. 223 of 2019)

Judgment

1. Before Court is an appeal filed by Protective Custody Ltd (The Appellant) and a cross-appeal by Tom Omunabi Omukuba (The Respondent in the main appeal). The appeals arises from a judgment rendered on 23rd September, 2021, where the Trial Court held that the Claimant, now Respondent was wrongfully terminated and awarded him Kshs.819,898. 40.

2. The Appellant being aggrieved by the decision of the Trial Court, lodged this appeal on 5th October, 2021.

3. The appeal is premised on the following grounds:i.That the Learned Magistrate erred in Law and in fact in his Judgment dated the 23rd of September, 2021 in awarding the Claimant Kenya Shillings 819,898. 40;ii.That the Learned Magistrate erred in Law and in fact in his Judgment dated the 23rd of September, 2021 in holding that the Claimant was wrongfully terminated, yet he absconded duty;iii.That the Learned Magistrate erred in Law and in fact in his Judgment dated the 23rd September, 2021 by holding that the Claimant was underpaid; andiv.That the Learned Magistrate erred in Law and in fact in his Judgment dated the 23rd September, 2021 by holding that the Claimant was entitled to Payment in Lieu of Notice.

4. The Appellant prays that the Judgment of the Trial Court be set aside, and the Respondent's claim be dismissed with costs to the Appellant.

5. The Respondent, equally being aggrieved by the same decision of the Trial Court, sought leave, and which leave was granted by this Court to file a cross-appeal. The cross-appeal was filed 3rd October, 2022, premised on the following grounds:i.That the Learned Magistrate erred in law and in fact in his judgment, in failing to allow the whole claim as prayed despite the overwhelming evidence.ii.That the Learned Magistrate erred in law and fact in failing to award the Claimant the unremitted NSSF deductions from his salary despite the NSSF extract showing there were no remittances by the Respondent but the same were being deducted.iii.That the Learned Magistrate erred in law and fact in failing to award house allowance, overtime allowance, off days and holidays allowance despite there being overwhelming evidence in support of the same.iv.That the Learned Magistrate erred in law and fact in failing to take into consideration the Claimant's evidence as well as written submissions, thereby arriving at a wrong conclusion on house allowance, overtime allowance, off days and holiday allowance.v.That the Learned Magistrate erred in law and fact by shifting the burden of proof to the Appellant against the express provision of the law on the Respondent having the burden of proof to produce documents where there is a dispute.vi.That the Learned Magistrate erred in law and fact by contradicting his analysis vis-ä-vis the award given on house allowance, overtime allowance, off days and holidays allowance.vii.That the Learned Magistrate erred in law and fact by allowing part of the claim instead of the whole claim as prayed.

6. The Appellant in the cross-appeal prays that it be allowed and the partial judgment in Kisumu CM Employment Cause No.223 of 2019 Tom Omunabi Omukuba V. Protective Custody Limited, disallowing the claims for house allowance, overtime allowance, unremitted NSSF deductions, off days payment and holidays payment to be set aside and the court does award the same.

7. Parties sought to canvass both the appeal and cross-appeal through written submissions, and submissions were filed for all parties.

The Appeal The Appellants’ Submissions 8. It is submitted for the Appellant that it is settled law that when a Court is giving an award, it is required to state each and every award made and the amount awarded by the Court for the said damages. It is further submitted that the Learned Magistrate failed to do so making it difficult to discern how the final award/decretal sum was reached.

9. The Appellant submits that the Respondent deserted his work station and proceeded to file the suit before Lower Court with an intention to illegally benefit. It is the Appellant’s further submission that the Respondent simply disappeared into thin air and that the Appellant was unable to reach him and wonders how then he was to be served with Notice of Desertion or issued with a Certificate of Service.

10. It is the Appellant’s submission that payment in lieu of notice is only applicable in instances where the employee’s employment is terminated.

11. The Appellant submits that the Respondent was employed in a rural area and that under Legal Notice No. 197, the basic pay for a security guard was Kshs.5,218. 00, while Legal Notice No. 116 (Year 2015) provided for basic pay for security guards of Kshs.5,844. 00. It further submits that it testified to the fact that the Respondent’s posting was at Nyando Wang’aya base Transmitter Station (BTS), in Nyando which is in a rural area and not a city.

12. The Appellant submits that after statutory deductions, the Respondent was receiving an Ksh.5,880 as his net pay, and hence, was never underpaid as alleged.

13. It is the Appellant’s submission that the Respondent was not underpaid and further that a 15% of the Salary was paid as house allowance. It is its submission that a simple calculation will show that after statutory deductions, the net salary could not be Kshs.5,884. 00 without the inclusion of the House Allowance.

14. The Appellant prays that the Judgment of the Trial Court be set aside, and the Respondent’s claim dismissed with costs.

Appellant’s Written Submissions on the Cross-Appeal 15. The Appellant submits that NSSF deductions were remitted by the Employer, and that there is no evidence from NSSF that the monthly remittances were not paid, and is incumbent upon the Respondent to follow up with NSSF to ensure that the records are up to date.

16. It is the Appellant’s submission that the Court dismissed the claims for payment of overtime, house allowance, off days and holidays, on grounds that there was no proof, and that the Respondent simply threw in figures and did not bother to explain how they were arrived at.

The Respondent’s Submissions 17. The Respondent submits that the Learned Magistrate was correct in making a finding that he was unlawfully terminated. He sought to rely in the case of Boniface Nkubi Karagania v Protective Custody Limited [2019] eKLR to support this position.

18. It is the Respondent’s submission that the Learned Magistrate in his judgment, analyzed all the prayers in the claim where he allowed some reliefs, while dismissing others, and which is not an error in the judgment.

19. It is the Respondent’s submission that the Trial Magistrate having made a correct finding that he was unlawfully terminated, the finding entitles him to payment in lieu of notice. It is his further submission that there was no notice produced by the Appellant to demonstrate that such a notice was issued to the Respondent.

20. The Respondent submits that the letter annexed by the Appellant which it termed as a desertion letter, was only an afterthought. It is his further submission that the Appellant never established that the Respondent had been transferred to any other station which he refused to go, and left work instead.

21. It is the Respondent’s submission that the Appellant, from the documents it produced which included the chief’s letter, showed that they knew the address of the Respondent but never contacted him.

22. The Respondent submits that the Appellant never produced any disciplinary letters against him for the duration he was at work and hence the Magistrate was correct in awarding the 12 months damages for unlawful termination. Reliance was had to the case of Ragose Katana Chidyanga & Another V. China Jiangxi International Kenya Limited (2018) eKLR to buttress this position.

23. The Respondent further submits that the Trial Court analyzed the Wage Regulations he produced in evidence and the salary the Respondent was being paid within the area he worked, and correctly concluded that the Respondent was underpaid.

The Respondent/Appellant Submissions on the Cross-Appeal 24. The Respondent in the main appeal, who is the Appellant in the cross-appeal, submits as follows on his appeal:

25. The Appellant submits that the Learned Magistrate erred in failing to analyze the NSSF statement and concluding that the same should be followed up with the NSSF instead of the Respondent, yet from the NSSF statements, it is clear that money was being deducted without being remitted.

26. It is the Appellant’s submission that under Section 31 of the Employment Act, it is the duty of the Respondent on the cross appeal to provide housing, but which he never alluded to having done. It is further submitted that the Appellant to the cross appeal was being paid a full salary that was below the basic salary and thus there was no payment of house allowance, and further that the Respondent never produced any contract to demonstrate to Court that the salary being paid was consolidated.

27. The Appellant submits that the Respondent failed to produce any records, despite having them, to controvert the testimony of the Appellant on working 12 hours a day. He further submits that he is entitled to the claim of overtime pay.

Analysis and Determination 28. I have considered the Record of Appeal, the appeal and the cross-appeal, and the rival submissions on both the appeal and the cross-appeal. The grounds of appeal and those of the cross-appeal are summarized as follows:i.That the Learned Magistrate erred in Law and in fact in his Judgment dated the 23rd of September, 2021 in awarding the Claimant Kenya Shillings 819,898. 40/-ii.That the Learned Magistrate erred in Law and in fact in his Judgment dated the 23rd of September, 2021 in holding that the Claimant was wrongfully terminated, yet he absconded dutyiii.That the Learned Magistrate erred in law and in fact, in failing to allow the whole claim as prayed despite the overwhelming evidence.

29. In the case of Mursal & Another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment) the Court had this to say on a first appeal: -“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses firsthand.”

30. The Appellant in the main appeal contends that the Respondent deserted duty and that he was never terminated. It is their case that the Respondent was deployed to a different station, but that he declined the transfer and decided to leave the job instead.

31. The Appellant told the Trial Court that it sent the Respondent what it termed a desertion letter through his postal address, and later a termination letter which was according to the Appellant hand delivered to the Respondent. The Respondent denied receiving the letters leading to the Trial Court’s finding of an unfair termination premised on lack of prove by the Appellant, that it notified the Respondent that it was considering termination on account of desertion of duty.

32. The Appellant during the hearing, told the Trial Court that he had no documents to show that the Respondent went on leave. He further stated that the Respondent was paid a house allowance, but that it had no document (s) to prove it.

33. The Court record indicates that the Appellant operated through verbal instructions. The Respondent’s employment contract was not reduced to a written agreement, transfers and deployments were verbal and so were warnings.

34. Further, it also turned out that the Appellant did not have an address for its employee, and so letters purported to have been sent, did not bear postal addresses and no evidence was adduced to show that the letters were sent, or that they were indeed received by the Respondent.

35. It has been variously held that an employer has the duty to show that it made effort to trace an employee, and cannot simply assert desertion without such prove. (See Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] eKLR)

36. In Ragose Katana Chidyanga & Another Versus China Jiangxi International Kenya Limited (2018) eKLR the Court held thus:“Like all other grounds however, desertion of duty must be proved. In this regard, an employer alleging desertion must demonstrate efforts made to reach out to the employee with a view to putting them on notice that termination of their employment on account of desertion is under consideration..”

37. It is not for nothing that Courts are known as Courts of records. Courts believe in the written word as they depend on documents to resolve disputes between parties. The verbal word is often forgotten – memory fails us once in a while; not to mention that those who speak the verbal word, leave the scene, one time or the other.

38. I conclude by holding that the Trial Court correctly found that the Respondent’s termination was unfair. I thus uphold the decision of the Trial Court in this respect.

39. The second limb of the appeal, concerns the award of Kshs. 819,898. 40/-, which the Trial Court based solely on the finding of an unfair termination. The Respondent sought various reliefs from the trial court, including under payment, pay in lieu of notice, refund of NSSF deductions that were not remitted, house allowance, salary underpayment and overtime amongst others.

40. The Trial Court did not state in its judgment the specific head of claim the award related to, and which forms the basis for the Appellant’s appeal on the premise that the Trial Court was under duty to break down the award and let parties know on what specific accounts the award was made.

41. As correctly submitted by the Appellant, the judgment indicates that the trial court only made a global award without specifying whether the award was in relation to house allowance, over time pay, notice pay or to any of the reliefs specifically sought by the Respondent under his statement of claim.

42. I thus agree with the Appellant that the Trial Court ought to have specified what reliefs it had awarded, how much and the basis for the awards.

43. For the reason foregone, I set aside the award of Kshs. 819,898. 40 for lacking legal basis. I will then proceed to analyze each remedy sought, and make my own finding.

Underpayment 44. The Respondent sought an award of Kshs. 525,858. 70/- on account of salary underpayment. His position is that he earned a salary of between Kshs. 4,500 and Kshs.5,500, that was below the minimum wage set by the Minister for Labour under the Minimum Wage Regulations of the specific years.

45. It is not disputed that the Respondent was employed as a security guard. What is in dispute is the period under which he served. His assertion is that he served from the year 2013 to March, 2019, while the Appellant’s position is that the Respondent was in their service between the year 2015 and 2019.

46. The Bank statement produced in evidence by the Respondent indicates that the Respondent started receiving payment from the Appellant on 16th January, 2015, with the last pay coming in on 25th April, 2019.

47. The Regulation of Wages Order for the year 2015, provided the salary payable to a watchman as Kshs. 10,954. 70. In the year 2017, the amount was revised to Kshs.14,420. 90/-. Applying these minimum wages to the period January, 2015 to April, 2019, brings the amount of underpayment to Kshs. 130,912. 80 for the period January, 2015 to December, 2016 and Kshs. 240,864. 30 for the period January, 2017 to April 2019, all amounting to Kshs, 317,777. 10/-

Compensation for unfair termination 48. The Respondent sought payment of 12 months salary for the unfair termination. The Respondent’s position is that he left the service of the Appellant in March, 2019. There is nothing to show that he reported the dispute to the labour office until later in June, 2019. He also did not receive any salary after 25th April, 2019, which should have alerted him that something was not right, if at all he was reporting on duty.

49. The Respondent’s behavior after the termination does not justify maximum compensation. In Moi Teaching and Referral Hospital v James Kipkonga Kendagor [2019] eKLR, the Court of Appeal held that a judge who awards the statutory maximum of 12 months’ salary without justification has exceeded his powers.

50. In the premise, I deem an award of three months’ salary sufficient compensation for the unfair termination, and which is hereby awarded.

House Allowance 51. The minimum wage order provides the salary payable as a consolidated figure which includes a house allowance. Having awarded the Respondent for underpayment, the claim for house allowance fails and is dismissed.

Pay in lieu of notice 52. The Respondent was evidently not issued any notice and the claim for notice pay succeeds on this account.

Overtime pay and Holiday allowance 53. There was no evidence indicating that the Respondent worked for more hours than he should have, and there was likewise no prove of having worked during holidays. The two claims fail and are dismissed.

Leave Allowance 54. Section 74 of the Employment Act, obligates an employer to keep records of various aspects of employees, including employment particulars, weekly rest days, leave, housing and itemized pay statement/pay slips amongst other records. The burden of prove on whether an employee went on leave is upon the employer.

55. In George Nyandiko V China Jiangxi International Kenya Limited [2016] eKLR the court opined thus: -“According to Sections 10 (7) and 74, it is the Responsibility of the employer to keep all employment records and produce them in any proceedings failing which it is the burden of the employer to prove such facts that should be contained in the employment records…”

56. The appellant having failed to produce the records or to prove that the Respondent took all his earned leave for the period worked, I hold that such leave is due for the period worked from 1st January, 2015 to April, 2019, all amounting to Kshs. 57,683. 60/-

NSSF Deductions 57. NSSF deductions are statutory deductions, and as correctly submitted by the Appellant, NSSF is a body with powers to recover unremitted dues from the Appellant if not remitted. It is only the NSSF that can impose penalties for non-remittance. (See Simiyu v Nzoia Sugar Company Limited (Employment and Labour Relations Claim E005 of 2021) [2022] KEELRC 1758 (KLR) (12 May 2022)

58. The claim for unremitted NSSF deductions fails and is dismissed.

59. In conclusion, the Court makes orders as follows: -i.An award of underpayment at Kshs, 317,777. 10/-ii.Three months’ salary for unfair termination (using Kshs. Kshs.14,420. 90) at Kshs. 43,262. 70/-iii.One-month salary in lieu of notice at Kshs. Kshs.14,420. 90iv.Leave pay at Kshs. Kshs. 57,683. 60/-v.The award of costs by the trial court is left undisturbed, but which shall be assessed based on the award herein.vi.The appeal having partially succeeded, I order that parties bear their own costs of the appeal.

60. Judgment accordingly.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 9TH DAY OF NOVEMBER, 2023. C. N. BAARIJUDGEAppearance:Mr. Odipo present for the AppellantMs. Owuor h/b for Mr. Bagada for the RespondentErwin - Court Assistant.