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ELRCPartially AllowedCause No 183 of 2016· [2019] KEELRC 1435 (KLR)

Benjamin Okombe Mokaya v Factory Guards Mombasa Ltd [2019] KEELRC 1435 (KLR)

Employment and Labour Relations Court
13 June 2019
JRJames Rika
1,738 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 that management cannot dismiss an employee cleared by a disciplinary committee, and awarded the security guard 12 months' worth of pay.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Security Guard from 2007 to 16th March 2015 at a final monthly salary of Kshs. 13,611, sued for house allowance, notice pay, annual leave, public holiday pay, gratuity, compensation for unfair termination and punitive damages. His termination followed an attempted fuel theft at Gapco Tank Farm, Makande, Mombasa on 20th February 2015, where he was on duty. After a suspension and a disciplinary hearing on 11th March 2015, at which he was accompanied by shop stewards, the Disciplinary Committee found him not culpable and recommended only a warning, noting the suspect gained entry through an area outside his post and his 8-year clean record. Top Management, after consulting the client Gapco, nonetheless terminated his contract 5 days later. The Respondent paid him Kshs. 288,610 in terminal dues. The Court held the disciplinary procedure was largely fair, but the termination itself was unjustified: there was no evidence of negligence or collusion, no document empowering Top Management to reverse the Committee's recommendation, and no deliberations demonstrating a fair review. Termination was therefore without fair procedure and valid reason contrary to Sections 41, 43 and 45 of the Employment Act. The Court awarded 9 months' salary as compensation (Kshs. 122,499) and one month's notice pay (Kshs. 13,611), totalling Kshs. 136,110. Claims covered by the terminal dues paid, and the claim for punitive damages, were refused. No order was made on costs, costs and interest not having been pleaded.

Key legal issues

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01

Fairness of termination where a disciplinary committee exonerates the employee but management dismisses anyway

Holding

Termination was unfair - not preceded by fair procedure and not based on valid reason

Reasoning

The Disciplinary Committee found the suspect entered through an area not guarded by the Claimant, that he had an 8-year clean record, and recommended only a warning. Top Management reversed this within 5 days without any documented deliberations, review process, or any policy document empowering it to impose a harsher penalty. The evidence showed the Claimant raised the alarm and assisted in the arrest, negating negligence or collusion.

p. 3
02

Whether the Claimant acted negligently or in collusion

Holding

No evidence of negligence or collusion

Reasoning

The Claimant left his post to assist a colleague who had shouted and set off the alarm; the suspect was arrested and handed to the Respondent's backup team and then the Police. The Committee itself found the suspect gained entry through an area not guarded by the Claimant. The Court found it illogical that guards in collusion would raise the alarm.

p. 2
03

Remedies: compensation, notice pay, and credit for sums already paid

Holding

9 months' salary compensation (Kshs. 122,499) and notice pay (Kshs. 13,611) awarded; other terminal dues deemed already paid

Reasoning

The Claimant received Kshs. 288,610 on termination, which the record showed covered basic salary, house allowance, leave and gratuity, so those claims failed. Considering his roughly 8 years of unblemished service, compensation equivalent to 9 months' salary was granted under the Employment Act.

p. 3

Legal principles established

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  • An employer's Top Management cannot override a disciplinary committee's recommendation to impose the ultimate sanction of dismissal without a fair process and valid reason satisfying Sections 41, 43 and 45 of the Employment Act

Court orders

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  1. 1.The Respondent shall pay to the Claimant 9 months' salary in compensation for unfair termination at Kshs. 122,499 and notice at Kshs. 13,611, total Kshs. 136,110
  2. 2.No order on the costs

Authorities

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Legislation

  • Employment ActSections 41, 43 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Sections 41, 43 and 45 invoked)

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, "Benjamin Okombe Mokaya v Factory Guards Mombasa Ltd [2019] KEELRC 1435 (KLR)", Case Analysis (2019). Cause No 183 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1435/eng@2019-06-13

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