Stephen Nyamweya & another v Riley Services Limited [2014] KEELRC 1199 (KLR)
The bottom line
#A Kenyan court ruled two security guards were unfairly sacked because their employer couldn't prove they committed any wrongdoing or give them a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid reason for terminating the Claimants' employment
The termination was not supported by any verifiable evidence and was therefore unfair; the employer failed to discharge its burden under Section 43
The dismissal letters cited a theft at the assignment site on the night of 2nd/3rd May 2012. The Claimants testified that everything was intact at handover. The Respondent did not prove when the incident was reported, which was crucial given the change of guard, and produced no evidence that the Claimants were actually charged in court despite alluding to criminal charges. The Respondent's investigator's memo was merely presumptive, concluding the guards must have been sleeping without direct proof.
Whether the Respondent followed fair procedure in terminating the Claimants' employment
The Respondent failed to follow due process under Section 41 of the Employment Act
The charges amounted to gross misconduct requiring the Section 41 procedure: explanation of reasons, presence of a representative, and hearing of explanations. The Claimants were not given an opportunity to be heard. Although the Respondent's witness asserted the Operations Manager interviewed the Claimants, no minutes or notes were produced. The Court also noted the Claimants were kept away from work for about three months without formal suspension or interdiction before dismissal.
Whether the Claimants were entitled to house allowance despite the Respondent's claim of consolidated salaries
House allowance at 15% was awarded because the contracts and payslips did not reflect any consolidated house allowance element
Section 31(1) and (2) of the Employment Act requires the employer to provide housing or pay a rent sum, but excludes contracts consolidating a housing element in the basic wage. Clause 9.1 of the contracts had no figures for remuneration and the payslips showed no house allowance figures, so there was no expressed intention that the salaries were inclusive of house allowance.
Legal principles established
#- Under Section 43 of the Employment Act, the employer bears the burden of proving a valid reason for termination, failing which the termination is deemed unfair
- The employer's burden under Section 43 is to demonstrate a valid reason that would move a reasonable employer to terminate employment, on a standard lower than beyond reasonable doubt
- While the Industrial Court is not bound by strict rules of evidence, this does not allow a witness to speak authoritatively on events they did not witness
Court orders
#- 1.Award to the 1st Claimant, Stephen Nyamweya: 3 months' salary in compensation for unfair termination Kshs. 31,671; one month's salary in lieu of notice Kshs. 10,557; prorata leave Kshs. 6,158; house allowance Kshs. 13,770 — total Kshs. 62,156
- 2.Award to the 2nd Claimant, Bernard Barasa Namukuru: 6 months' salary in compensation for unfair termination Kshs. 56,304; one month's salary in lieu of notice Kshs. 9,384; salary for 4 days worked Kshs. 1,251; prorata leave Kshs. 3,832; house allowance Kshs. 8,568; uniform refund Kshs. 2,635 — total Kshs. 81,974
- 3.Respondent to meet the costs of the case
- 4.Award to attract interest at court rates from the date of the award until payment in full
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Industrial Court Act, 2011 (Employment Act, 2007 claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Nyamweya & another v Riley Services Limited [2014] KEELRC 1199 (KLR)", Case Analysis (2014). Cause No 2469 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1199/eng@2014-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.