Sebastian Juma Wanzala v Inter Security Services Limited [2014] KEELRC 549 (KLR)
The bottom line
#A Kenyan court ruled a security guard's on-the-spot firing was unfair because the employer had no disciplinary hearing and couldn't prove its reasons.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons for termination under Section 43 and 45 of the Employment Act 2007
Neither the car-washing outside the gate nor the women cooking at the stalled site was a valid and sufficient reason for summary dismissal
The Claimant's duty was confined to the gated construction site; cars were washed outside the compound. The women cooking inside a stalled site with no workers made no commercial sense. Both accusations, conceded in cross-examination, failed as valid grounds.
Procedural fairness under Section 41 of the Employment Act 2007
The summary dismissal was on the spot, without a disciplinary hearing, and therefore procedurally unfair
The grounds were never tested through a disciplinary hearing. The Claimant was questioned at the office without a witness and dismissed on the spot; the same-day replacement of the guard suggested a pre-determined dismissal shorn of procedural fairness.
Whether the Claimant was dismissed or deserted employment
The Claimant was summarily dismissed; the witness's contrary evidence was untruthful
The Statement of Response admitted summary dismissal while the witness asserted voluntary exit. Both could not be true; the court preferred the pleaded position and the Claimant's account.
Entitlement to salary, leave pay and service pay
Employer's failure to produce records of salary payment and leave justified awards for 24 days' salary, 252 days' leave pay and gratuity under the Protective Security Services Order
The employer offered no conclusive evidence of payment or leave records. The Claimant's uncontradicted evidence of 12 years without leave was accepted, and the Regulation of Wages Order justified gratuity at 18 days per completed year.
Legal principles established
#- Where the employer's pleaded position and its witness's testimony contradict each other, the court may find the witness untruthful and prefer the pleaded position
- A guard's duty does not extend beyond the premises he is entrusted to guard; third-party activity outside the gate is not a valid ground for dismissal
- An employer who opts for on-the-spot dismissal forfeits the opportunity to substantiate the validity of its reasons, having disregarded the employee's procedural protections under Section 41
- The employer bears the burden of proving payment of salary and maintaining leave records; absence of such records entitles the employee to his uncontradicted claim
Court orders
#- 1.Declaration that termination of the Claimant's contract was unfair and unlawful
- 2.Respondent to pay 7 months' salary in compensation at Kshs. 49,532
- 3.Respondent to pay 1 month salary in lieu of notice at Kshs. 7,076
- 4.Respondent to pay 24 days' salary at Kshs. 6,531
- 5.Respondent to pay 252 days of annual leave pay at Kshs. 68,582
- 6.Respondent to pay service/gratuity pay at Kshs. 58,785, total Kshs. 190,506
- 7.Payment within 30 days of delivery of the Award
- 8.Each party to bear their own costs; no order on interest
- Jurisdiction invoked
- Industrial Court jurisdiction over employment disputes (issue in dispute: unfair and unlawful termination)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Sebastian Juma Wanzala v Inter Security Services Limited [2014] KEELRC 549 (KLR)", Case Analysis (2014). Cause Number 1006 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/549/eng@2014-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.