Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedIndustrial Cause No. 180 of 2012· [2013] KEELRC 183 (KLR)

David B. Simiyu Musungu v K.K. Security Limited [2013] KEELRC 183 (KLR)

Industrial Court of Kenya
14 June 2013
DMD.K.N. Marete
1,990 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan security guard fired over alleged theft won about Kshs. 272,000 because his employer never gave him notice or a hearing.

What this practically means

#

Executive summary

#
This was a test case on liability in an unfair termination dispute consolidated by consent with Industrial Cause No. 179 of 2012 (Aggrey Amulavu v K.K. Security Ltd). The claimant, employed as a guard from 23rd September 1991, was summarily dismissed on 13th February 2009 following an alleged theft from a PesaPoint machine along Lower Kabete Road, Nairobi, without investigations, notice or a hearing. He and colleagues were charged with stealing in Criminal Cause No. 658 of 2009 at Kibera Law Courts but were acquitted under section 215 of the Criminal Procedure Code for lack of proof. He claimed salary for February 2009, one month's pay in lieu of notice, service pay, and twelve months' salary as damages for wrongful dismissal, plus a certificate of service. The court framed four issues: wrongfulness of termination, justification for summary dismissal, entitlement to relief, and costs. Applying sections 44, 45 and 41 of the Employment Act, 2007, the court found the employer failed to prove a valid reason and fair procedure; no investigations were conducted and section 41 notice and hearing requirements were not invoked, rendering the dismissal invalid, wrongful, unfair and unlawful. The claim was allowed except the severance pay head, which failed because the case was not a redundancy under section 40. The court awarded Kshs. 271,907.20 to the claimant, extended the liability finding to the consolidated cause with an award of Ksh. 316,300.00, ordered certificates of service, and awarded costs to the claimants. Judgment was delivered on 14th June 2013 by D.K. Njagi Marete, Judge.

Key legal issues

#
01

Whether the summary dismissal on an allegation of theft was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful because the employer failed to follow the procedure for summary dismissal and fair termination and did not give notice or a hearing

Reasoning

The court applied sections 44, 45 and 41 of the Employment Act, 2007. Section 45 places the burden on the employer to prove a valid reason and fair procedure. Section 41 requires an explanation to the employee and hearing of representations before termination on grounds of misconduct. The respondent conducted no investigations, gave no notice and granted no hearing, even after the claimant's acquittal of the criminal charge under section 215 of the Criminal Procedure Code for lack of proof. The dismissal therefore failed both substantive and procedural fairness.

p. 4
02

Whether severance/service pay was payable

Holding

Service pay was refused as this was not a redundancy case under section 40 of the Employment Act, 2007

Reasoning

The claimant had sought 18 days' service pay for each year worked. The court held that severance pay arises under section 40 of the Employment Act, 2007, which governs redundancy. Since the termination was on grounds of alleged misconduct and not redundancy, the head of claim for severance pay failed and only the other heads were awarded.

p. 5

Legal principles established

#
  • A termination of employment that does not comply with sections 41, 44 and 45 of the Employment Act is invalid, wrongful, unfair and unlawful
  • An employer must afford the employee a hearing and comply with natural justice before termination

Court orders

#
  1. 1.Compensation to the claimant of salary for February 2009 (Kshs. 19,407.80), one month's salary in lieu of notice (Kshs. 19,407.80) and 12 months' salary for wrongful dismissal (Kshs. 232,893.60), totalling Kshs. 271,907.20
  2. 2.The respondent is ordered to issue a certificate of service to the claimants respectively
  3. 3.In the test-case determination extending to Cause No. 179 of 2012: salary for February 2009 (Ksh. 17,500.00), one month's salary in lieu of notice (Ksh. 17,500.00), unpaid responsibility allowance from May 2005 to February 2009 (Ksh. 71,300.00) and 12 months' compensation for wrongful dismissal (Ksh. 210,000.00), totalling Ksh. 316,300.00
  4. 4.The costs of this suit shall be borne by the Respondent

Authorities

#

Legislation

  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 40
  • Penal CodeSection 279
  • Criminal Procedure CodeSection 215
Jurisdiction invoked
Section 45 of the Employment Act, 2007 (Industrial Court jurisdiction over unfair termination disputes)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David B. Simiyu Musungu v K.K. Security Limited [2013] KEELRC 183 (KLR)", Case Analysis (2013). Industrial Cause No. 180 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/183/eng@2013-06-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.