Jonesmas Thoya Mukamba v Crest Security Services Limited [2016] KEELRC 267 (KLR)
The bottom line
#A Kenyan court awarded a dismissed night guard Kshs. 290,151 because his employer couldn't prove misconduct or follow fair dismissal procedures.
What this practically means
#Executive summary
#Key legal issues
#Valid and fair reason for termination
The respondent failed to prove the misconduct alleged; the RW1's evidence was hearsay
The claimant denied refusing to be searched and denied the operations manager's presence at the gate. Neither the operations manager nor the day guard testified to support the allegations. The respondent's General Manager never witnessed the incident, so his account was hearsay, leaving the claimant's uncontroverted evidence accepted on a balance of probability.
Fair procedure under section 41 of the Employment Act
The alleged disciplinary hearing did not comply with section 41 because the claimant was not heard in the presence of a companion of his choice
Section 41 mandatorily requires the employer to explain the reason for intended dismissal in a language the employee understands and in the presence of a shop floor union representative or fellow employee of the employee's choice. The hearing before managers did not satisfy this requirement, so the termination was procedurally unfair.
Limitation on claim for underpayment of salary
Claim not statute barred; underpayment was a continuing breach that ceased on dismissal
Under section 90 of the Employment Act, a claim arising from a continuing injury must be filed within 12 months of cessation of the breach. Underpayment continued until dismissal on 7.8.2015 and suit was filed on 25.9.2015, well within 12 months. The court allowed the underpayment claim as calculated in the memorandum of claim.
Compensation quantum for unfair termination
Eight months' salary awarded, considering the remaining nine months of the fixed term contract and the claimant's blindness
The court exercised its discretion under sections 35(1)(c) and 49(1)(a) of the Employment Act, awarding one month's notice pay at the minimum wage of Kshs. 12,221 and eight months' salary as compensation, considering the reasonable expectation to serve the remaining nine months and the claimant's reduced employability due to blindness.
Legal principles established
#- Termination of employment is unfair if the employer fails to prove a valid and fair reason and a fair procedure
- An employer cannot dismiss an employee for misconduct without first explaining the reason in a language understood and in the presence of a companion of the employee's choice (section 41)
- An employment claim is not time barred where filed within 12 months after the cessation of a continuing injury (section 90)
Court orders
#- 1.Declaration that the termination of the claimant's employment was unfair and unjust
- 2.One month salary in lieu of notice of Kshs. 12,221
- 3.Compensation for unfair termination of Kshs. 97,768 (eight months' salary)
- 4.Gratuity of Kshs. 36,663 under Regulation 17 of the Regulation of Wages (Protective Security Services) Order
- 5.Salary underpayment of Kshs. 143,499
- 6.Total award of Kshs. 290,151 plus costs and interest
- 7.Certificate of Service to be issued to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act claims)
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.
- Mwangi v Lake Basin Development Authority (Cause E001 of 2025) [2025] KEELRC 1382 (KLR)[2025] KEELRC 1382 (KLR)12 May 2025
Cite this brief
#Cite this brief
Caselaw, "Jonesmas Thoya Mukamba v Crest Security Services Limited [2016] KEELRC 267 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/267/eng@2016-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.