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ELRCDismissedNot stated in extract· [2015] KEELRC 282 (KLR)

Banking, Insurance & Finance Union (Kenya) v Capital Sacco Society Limited [2015] KEELRC 282 (KLR)

Employment and Labour Relations Court
6 November 2015
1,281 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld the dismissal of two watchmen because the employer had a genuine reason to fire them, though shared fault meant each side paid its own costs.

What this practically means

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Executive summary

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The claimant union, on behalf of two grievants (Erastus Murithi and Kirimi Murimi David), former watchmen of the respondent, filed a memorandum of claim on 13.03.2015 challenging their dismissal effective 11.04.2014. The claim sought declarations that the dismissal was unprocedural, wrongful and unfair, reinstatement, lost salaries, 12 months' gross salary compensation, and in the alternative exemplary damages of Kshs. 3,000,000. The respondent denied the claim and sought dismissal with costs. The court identified undisputed facts: a recognition agreement existed, the grievants were union members and watchmen terminated effective 11.04.2014, and each had been suspended, given a show cause letter, replied in writing, and heard on 11.04.2014. The court held procedural fairness under section 41 of the Employment Act, 2007 was met, leaving only whether there was a valid and genuine reason for termination under section 43. The grievants were on duty on the night of 16-17.02.2014 when the respondent's building was broken into through the roof and a laptop, camera and mobile phone stolen. The 1st grievant's testimony was found contradictory on the size of the roof cut and wetness on the floor, and he admitted leaving his post from 12.30am to shelter from rain. The 2nd grievant did not testify. The court found the grievants slept on the job and that the respondent had valid and genuine reasons to terminate. However, the failed G4S alarm system and unexplained police inaction meant the grievants were not solely responsible, and the court ordered each party to bear own costs. The suit was dismissed in its entirety on 6th November 2015.

Key legal issues

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01

Whether termination was procedurally fair

Holding

Procedural fairness was accorded: notice, written reply and hearing were given as required by section 41

Reasoning

The court found that each grievant was served with a show cause letter, replied in writing, and was given a hearing on 11.04.2014 before termination. This satisfied the notice and hearing requirements of section 41 of the Employment Act, 2007, so the procedure was not contested successfully.

p. 2
02

Whether there was a valid and genuine reason for termination under section 43

Holding

Yes - the grievants failed to notice and report a break-in at the premises they were guarding, amounting to sleeping on the job

Reasoning

The grievants were night watchmen when the building was broken into through the roof; thieves stayed for about two hours and stole property. The 1st grievant's testimony was found contradictory (size of the roof cut; wetness on the floor) and he admitted leaving his post. The 2nd grievant did not testify. The court held the respondent had valid and genuine reasons at the time of termination.

p. 2
03

Mitigating role of the employer's own security failures

Holding

The failed G4S alarm and unexplained police inaction meant the grievants were not solely responsible; this informed the costs order

Reasoning

The court noted the alarm failed and there was no explanation that intruders had deliberately disabled the cable, nor why police did not act on transmitted signals. Though the grievants failed in their duty, they were not solely responsible, and the court exercised discretion to order each party to bear own costs rather than costs against the claimant.

p. 3

Legal principles established

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  • Procedural fairness under section 41 does not avail an employee where there is a valid and genuine reason for termination under section 43
  • Contradictory evidence from a claimant undermines the credibility of that evidence
  • Where an employer's own security failures contribute to the loss, costs may be ordered against neither party even where the claim fails

Court orders

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  1. 1.The claimant's suit is dismissed
  2. 2.Each party to bear own costs of the suit
Jurisdiction invoked
Employment Act, 2007 (sections 41 and 43); Employment and Labour Relations Court jurisdiction over employment disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Banking, Insurance & Finance Union (Kenya) v Capital Sacco Society Limited [2015] KEELRC 282 (KLR)", Case Analysis (2015). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/282/eng@2015-11-06

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