Daniel Kamau Kagai v Two Four Seven Guards Limited [2019] KEELRC 373 (KLR)
The bottom line
#A Kenyan court ruled an employer must produce records and follow fair process before firing someone, or pay compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent discharged its statutory burden of justifying the termination
The Respondent failed to produce any documents to prove alleged absenteeism or a lawful dismissal; the Claimant's claim of oral dismissal without notice succeeded
The Respondent alleged that the Claimant absconded on 8th August 2017 but produced no attendance records or documentation. Once unfair dismissal was alleged, the burden shifted to the employer to justify the reasons for termination or show no dismissal occurred. Its failure to avail records under Section 74 meant the claim of termination without notice had traction.
Whether the termination was procedurally fair under Section 41 of the Employment Act and Article 47(1)
The Claimant was not given notice to show cause or informed of the reasons for termination; the termination was unprocedural and unlawful
The Claimant was not served with a notice to show cause nor informed of the reasons for termination as required by Section 41 of the Employment Act. Article 47(1) of the Constitution and the Fair Administrative Actions Act guaranteed fair administrative action. He was therefore not accorded due process before termination.
Whether the ancillary claims for leave, public holidays and overtime were proved
Those claims failed for lack of proof
The Claimant did not prove underpayment or overtime, did not request production of the Respondent's records, and did not produce leave application forms. His own evidence that he was given an off to vote undermined the claim that leave was never granted. These heads were accordingly refused.
Legal principles established
#- The employer is the keeper of records under Section 74 of the Employment Act and bears the statutory obligation to justify a dismissal once unfair dismissal is alleged
- An employee is entitled to fair administrative action and, prior to termination, to be informed of the reasons for termination
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for one month's salary in lieu of notice – Kshs. 12,000/-
- 2.Two months' salary as compensation for the unlawful dismissal – Kshs. 24,000/-
- 3.Costs capped at Kshs. 40,000/-
- 4.Interest on the sums in (a) and (b) at court rates from date of judgment till payment in full
- 5.A certificate of service
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction under the Employment Act (no specific constitutional provision invoked for jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kamau Kagai v Two Four Seven Guards Limited [2019] KEELRC 373 (KLR)", Case Analysis (2019). Cause No 320 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/373/eng@2019-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.