BERNARD NGUGI V G4S SECURITY SERVICES KENYA LIMITED [2013] KEELRC 372 (KLR)
The bottom line
#A Kenyan court ruled that employers cannot skip proper notice or a fair hearing unless they prove gross misconduct—so unfair dismissals carry real financial consequences.
What this practically means
#Executive summary
#Key legal issues
#Validity of termination under contractual clause permitting payment in lieu of notice
Such clauses cannot stand against section 44 of the Employment Act; payment in lieu applies only on established gross misconduct
The court held that to allow an innocent employee to be terminated on shorter notice than a culpable one would invert the statutory scheme. Article 47 on fair administrative action and Article 10 national values inform the construction. The claimant was not accused of gross misconduct justifying payment in lieu, so termination under clause 8 without proven misconduct was unfair.
Fairness of the disciplinary process under section 41
The disciplinary proceedings fell short of section 41 standards: short notice, no representation, and shifting intentions by the employer
The respondent first relied on clause 8 in the termination letter but later invoked disciplinary proceedings, evidencing bad faith. The notice did not allow the statutory preparation period and the claimant lacked a representative. Employers must strictly comply with agreed and statutory procedures and must not shift the intent of proceedings mid-stream.
Whether alleged reasons for termination were proved
The reasons were not proved; the alleged irregular promotions were not established and the cheque-collection assignment was a reasonable response to the respondent's staffing deficiency
The claimant had only recommended promotions, with decisions made by the HR office. The Eldoret branch had no credit officer, a deficiency known to the Regional General Manager, so assigning a guard to collect cheques was within the claimant's authority. Losses from defective systems cannot be visited on the employee.
Remedies under section 49
Six months' gross salary as compensation plus notice pay, days worked and accrued leave, less permissible deductions; gratuity refused
Considering the unfair dismissal, the claimant's bumpy record of service and the substantial contributory pension of slightly below Kshs.1,000,000/= already received, six months' gross salary (Kshs.505,233.30) was fair. Pre-2007 authorities awarding only one month's pay did not apply given section 49(1)(c).
Legal principles established
#- Shorter termination notice or payment in lieu of notice is permissible only where gross misconduct is established; otherwise the agreed or statutory notice must be served.
- Employers cannot visit on employees losses attributable to deficiencies in the employer's own operational policies and systems.
Court orders
#- 1.A declaration that the termination of the claimant's employment was unfair
- 2.The respondent to pay the claimant Kshs.580,473.30/= plus interest at court rates from the date of judgment till full payment
- 3.The respondent to pay half of the costs of the case
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BERNARD NGUGI V G4S SECURITY SERVICES KENYA LIMITED [2013] KEELRC 372 (KLR)", Case Analysis (2013). Industrial Court Cause (undisclosed in judgment; heard at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/372/eng@2013-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.