A pair of grey ticks on WhatsApp became decisive evidence in an Employment and Labour Relations Court case, helping a former security guard secure KSh992,146.60 from employer, in compensation after the court found his dismissal was unlawful and unfair.
In a judgment delivered on March 6, 2025, Justice Hellen Wasilwa found that the respondent, Jackie Kiaraho, had been properly served with court documents through WhatsApp before being served physically, but failed to respond or participate in the proceedings.
The court relied on affidavits of service filed by the claimant, Peter Njonja Bundi, showing that the pleadings had been sent to the respondent’s mobile phone via WhatsApp. The message displayed two grey ticks, indicating successful delivery to the device, and a screenshot of the WhatsApp conversation was produced as part of the evidence before the court.
The claimant’s advocate subsequently effected personal service at the respondent’s residence in Runda Estate, where the documents were received by a security officer identified as Ben. Despite being served electronically and physically, the respondent neither entered appearance nor filed a response.
“The suit was undefended as the Respondent neither entered appearance nor filed any response despite being duly served with court documents on two occasions,” Justice Wasilwa stated.
The judge further noted that Advocate Grace Wanjiku Mwaura had sworn an affidavit confirming both modes of service.
“The Claimant filed another Affidavit of Service… affirming that she served the Respondent with the Statement of Claim, Verifying Affidavit, Witness Statements… via the Respondent’s mobile number, with delivery evidenced by two grey ticks,” the court observed.
With no defence on record, the court proceeded to determine the dispute based solely on the evidence presented by the claimant.
Bundi told the court that he worked as a security guard at Jadav Gardens in Tigoni, Limuru, from April 1, 2015 until November 2020. Although the parties had agreed on a monthly salary of KSh16,000, he testified that he was consistently paid KSh10,000 throughout the five-year period.
He further testified that he worked daily 12-hour night shifts from 6 p.m. to 6 a.m., including weekends and public holidays, without annual leave, weekly rest days or overtime compensation.
According to Bundi, every time he complained about his working conditions, his employer dismissed his concerns on the basis that he was merely a casual labourer and therefore not entitled to employment benefits.
The employment relationship deteriorated in October 2020 after a theft occurred at the premises where he worked.
Bundi told the court he was arrested by officers from Tigoni Police Station on allegations that he had failed to prevent the theft. He remained in police custody for six days before investigators established that he was not involved in the incident and released him without facing any criminal charges.
Upon his release, however, he said his employer instructed him not to return to work and failed to pay his outstanding salary or terminal dues. He argued that his employment had been terminated without notice, without a disciplinary hearing and without any lawful reason. After reviewing the evidence, Justice Wasilwa rejected the employer’s apparent position that Bundi was a casual employee.
The court held that his continuous service for approximately five years automatically converted his employment into one protected under Section 37 of the Employment Act.
“I find that the Claimant was an employee of the Respondent within the meaning of Section 37 of the Employment Act, 2007, and was unlawfully and unfairly terminated contrary to Section 45 of the Employment Act,” Justice Wasilwa ruled.
The judge further found that the employer had failed to justify the dismissal or comply with the disciplinary procedures required under Kenyan labour law.
“The Respondent failed to provide a valid reason for termination or adhere to due process, thereby violating the Claimant’s rights under the law,” the judge stated.
Having found in favour of the claimant, the court awarded compensation under several heads.
The award comprised KSh16,000 in lieu of notice, KSh16,000 for accrued annual leave, KSh300,000 for salary underpayment over five years, KSh83,148 for work performed on Sundays, KSh38,397 for work on public holidays, KSh452,601.60 for overtime worked over three years, KSh40,000 as service pay and KSh86,000, equivalent to six months’ salary, as compensation for unfair termination.
In total, Bundi was awarded KSh992,146.60, less the applicable statutory deductions.
The court also directed the employer to issue him with a Certificate of Service in accordance with Section 51 of the Employment Act.
Additionally, the court ordered that the award accrue interest at court rates from the date of judgment until payment in full, with the respondent also bearing the costs of the suit.
Beyond the employment dispute itself, the judgment underscores the growing role of electronic communication in Kenya’s judicial process.
The court accepted the WhatsApp records as evidence that the pleadings had successfully reached the respondent’s phone, with the two grey ticks confirming delivery. Together with the subsequent personal service, the evidence satisfied the court that the respondent had been adequately notified of the proceedings but chose not to participate.
For Bundi, the WhatsApp evidence removed any uncertainty surrounding service, enabling the court to hear the matter as an undefended claim that ultimately resulted in an award of nearly KSh1 million for unfair dismissal and multiple employment law violations.
