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ELRCPartially AllowedCause Number 805 of 2013· [2018] KEELRC 2234 (KLR)

Simon Mbithi Mbane v Inter Security Services Limited [2018] KEELRC 2234 (KLR)

Employment and Labour Relations Court of Kenya
16 February 2018
ANAbuodha J. N.
957 words in judgment
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The bottom line

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A Kenyan court ruled that a security guard who faced theft charges was unfairly dismissed because his employer couldn't prove he had abandoned his job.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a guard from September 1996, alleged wrongful and unlawful termination of his services and non-payment of terminal dues. The respondent admitted the employment relationship and asserted that following a burglary at the National Olympic Committee of Kenya offices on 12th February 2009, the claimant was taken to Kilimani Police Station for questioning, never reported back to work, and therefore absconded duties. The claimant testified that armed thugs tied him up during the raid, that he was charged with theft on 16th February 2009 and remanded for four months, that he was told to stay away until his case was concluded, and that after his acquittal on 28th September 2012 he was placed on standby and then told he could no longer work. The respondent's witness admitted the company used to send a Mr Musyoka to court to follow up on the criminal case. The court held that an employer alleging abscondment must reasonably demonstrate efforts to contact the employee, and since there was no evidence Mr Musyoka ever asked the claimant to resume duties, the abscondment claim failed. The court found the termination unfair under Section 45 of the Employment Act and awarded one month's salary in lieu of notice (Kshs 5,796) and seven months' salary as compensation for unfair dismissal (Kshs 40,572), plus costs. Other pleaded heads of claim were disallowed for lack of evidence. Judgment delivered at Nairobi on 16th February 2018 by Abuodha J. N.

Key legal issues

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01

Whether the claimant absconded duties

Holding

The respondent failed to reasonably prove that the claimant absconded duties

Reasoning

The respondent alleged the claimant never returned after his arrest, yet its own witness admitted sending Mr Musyoka to court to follow up on the claimant's criminal case. The respondent never showed that Musyoka asked the claimant to resume work and he refused, undermining the abscondment claim and supporting the claimant's account that he was told to stay away until the charges concluded.

p. 2
02

Whether the termination was unfair under Section 45 of the Employment Act

Holding

The termination was unfair; the claimant was awarded one month's salary in lieu of notice and seven months' salary as compensation

Reasoning

Having found no abscondment, the court held the respondent had not followed due process under the Employment Act. The respondent's discomfort at retaining an employee suspected of theft did not excuse dispensing with the statutory procedure. Compensation of seven months' salary was awarded together with notice pay.

p. 2

Legal principles established

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  • An employer alleging that an employee absconded duties must reasonably demonstrate that efforts were made to contact the employee without success
  • Due process under the Employment Act must be followed before terminating an employee's services, even where the employee was suspected of involvement in theft

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Kshs 5,796
  2. 2.Payment of seven months' salary as compensation for unfair dismissal of Kshs 40,572
  3. 3.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment ActSection 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 45 relied on for the unfair termination finding)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simon Mbithi Mbane v Inter Security Services Limited [2018] KEELRC 2234 (KLR)", Case Analysis (2018). Cause Number 805 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2234/eng@2018-02-16

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