Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 320 of 2017· [2019] KEELRC 373 (KLR)

Daniel Kamau Kagai v Two Four Seven Guards Limited [2019] KEELRC 373 (KLR)

Employment and Labour Relations Court
7 November 2019
1,267 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The Claimant, employed by the Respondent as a security guard from 22nd October 2015, sued for unfair and unlawful summary dismissal allegedly effected by the Respondent's manager Mr. Maina on 10th August 2017. He sought general damages, unpaid leave for two years, one month's salary in lieu of notice, payment for public holidays and overtime, costs and interest. The Respondent denied dismissing him, asserting that he absconded on 8th August 2017, the general election day, and never returned, thereby unilaterally terminating his employment. The Claimant testified that he was allowed off to vote but could not return due to lack of transport, and that he was told to return his uniform and go home. The Respondent's finance officer confirmed the Claimant did not report on 8th August but produced no attendance records. The court found that the Respondent, as keeper of records under Section 74 of the Employment Act, failed to avail any document proving absenteeism or a lawful dismissal. The Claimant was neither served with a notice to show cause nor informed of the reasons for termination, contrary to Section 41 of the Employment Act, Article 47(1) of the Constitution and the Fair Administrative Actions Act. Judgment was entered for the Claimant for one month's salary in lieu of notice and two months' salary as compensation for unlawful dismissal, with costs capped at Kshs. 40,000/-, interest, and a certificate of service. The claims for unpaid leave, public holidays and overtime failed for want of proof.

Key legal issues

#
01

Whether the Respondent discharged its statutory burden of justifying the termination

Holding

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

Reasoning

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.

p. 2
02

Whether the termination was procedurally fair under Section 41 of the Employment Act and Article 47(1)

Holding

The Claimant was not given notice to show cause or informed of the reasons for termination; the termination was unprocedural and unlawful

Reasoning

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.

p. 2
03

Whether the ancillary claims for leave, public holidays and overtime were proved

Holding

Those claims failed for lack of proof

Reasoning

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.

p. 2

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. 1.Judgment entered for the Claimant against the Respondent for one month's salary in lieu of notice – Kshs. 12,000/-
  2. 2.Two months' salary as compensation for the unlawful dismissal – Kshs. 24,000/-
  3. 3.Costs capped at Kshs. 40,000/-
  4. 4.Interest on the sums in (a) and (b) at court rates from date of judgment till payment in full
  5. 5.A certificate of service

Authorities

#

Legislation

  • Constitution of KenyaArticle 47(1)
  • Employment ActSection 41
  • Employment ActSection 74
  • Fair Administrative Actions ActNot specified
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.