Banking, Insurance & Finance Union (Kenya) v Capital Sacco Society Limited [2015] KEELRC 282 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether termination was procedurally fair
Procedural fairness was accorded: notice, written reply and hearing were given as required by section 41
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.
Whether there was a valid and genuine reason for termination under section 43
Yes - the grievants failed to notice and report a break-in at the premises they were guarding, amounting to sleeping on the job
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.
Mitigating role of the employer's own security failures
The failed G4S alarm and unexplained police inaction meant the grievants were not solely responsible; this informed the costs order
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.
Legal principles established
#- 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
#- 1.The claimant's suit is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.