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ELRCPartially AllowedCause No. 2041 of 2011· [2016] KEELRC 1073 (KLR)

John Muinde Mburu v Inter Security Ltd [2016] KEELRC 1073 (KLR)

Employment and Labour Relations Court of Kenya
24 June 2016
2,214 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 ruled a security supervisor's summary dismissal unfair because his employer never gave him a hearing, awarding him over Kshs 309,000.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a security guard supervisor from 1st November 2007 at a monthly salary of Kshs 11,421, was summarily dismissed on 7th September 2010. The dismissal letter cited persistent defiance towards seniors, specifically failure to supervise guards at Air Connection Ltd, while the claimant attributed the dismissal to an allegation that he failed to introduce a redeployed night guard at S.O.S Yaya Centre to a caretaker. The court framed two issues: whether the summary dismissal was for a valid reason and through fair procedure, and whether the reliefs sought were payable. The court found the respondent failed to follow section 41 of the Employment Act: no show-cause notice, no hearing, and no opportunity to be accompanied by a fellow employee. The claimant made a prima facie case under section 47(5), shifting the burden to the employer under section 43(1), which it failed to discharge. The dismissal was held unlawful and unfair under section 45, and eight months' salary (Kshs 91,368) was awarded as compensation under section 49(1)(c). The claimant also proved notice pay (Kshs 11,421), untaken leave (Kshs 9,224.65), seven days' salary arrears (Kshs 3,074.90) and overtime (Kshs 194,038). The house allowance claim was dismissed as unsubstantiated. Total award: Kshs 309,126.55 with interest at court rates from filing, a certificate of service within 30 days, and costs to the claimant.

Key legal issues

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01

Validity of reason and fairness of procedure in summary dismissal

Holding

The summary dismissal was unlawful and unfair: it was not for a valid reason and section 41 procedure was not followed; the claimant was not given a show-cause notice or hearing and could not be accompanied by a fellow employee

Reasoning

The respondent alleged persistent defiance and failure to supervise guards at Air Connection Ltd, but no charges were preferred and no show-cause notice or hearing was given. The claimant made out a prima facie case under section 47(5), shifting the burden to the employer under section 43(1), which the respondent failed to discharge. Conflicting versions could have been clarified at a hearing. Compensation of eight months' salary was awarded under section 49(1)(c).

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02

Entitlement to terminal benefits

Holding

The claimant proved entitlement to one month's salary in lieu of notice, untaken leave, seven days' salary arrears for September 2010 and overtime, but not house allowance

Reasoning

The respondent put up no viable defence to the reliefs under paragraph 20 of the amended memorandum of claim. The claimant proved the amounts on a balance of probability, totalling Kshs 217,758.55, bringing the total award with compensation to Kshs 309,126.55. The house allowance claim was unsubstantiated and dismissed.

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Legal principles established

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  • The employer bears the burden of proving the reason(s) for termination; failure to do so renders the termination unfair
  • Before summary dismissal an employer must hear and consider the employee's representations under section 41(2) of the Employment Act

Court orders

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  1. 1.The respondent is ordered to pay the claimant a sum of Kshs 309,126.55
  2. 2.The award is payable with interest at court rates from date of filing suit till payment in full
  3. 3.The respondent to provide the claimant with certificate of Service within 30 days from date of judgement
  4. 4.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(b)
  • Employment Act, 2007section 44
  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 44(1)(c)
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 45(1)
  • Employment Act, 2007section 45(4)
  • Employment Act, 2007section 45(5)
  • Employment Act, 2007section 51
  • Employment Act, 2007section 28(1)(a)
  • Employment Act, 2007section 45(2)(a)(b)(c)
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007

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, "John Muinde Mburu v Inter Security Ltd [2016] KEELRC 1073 (KLR)", Case Analysis (2016). Cause No. 2041 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1073/eng@2016-06-24

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