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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 584 of 2016· [2020] KEELRC 316 (KLR)

Cyprian Mutembei Ndiga v Brinks Security Services Ltd [2020] KEELRC 316 (KLR)

Employment and Labour Relations Court
22 October 2020
1,444 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 guard's dismissal unfair because his employer punished him three times for one offence without a hearing, awarding him Kshs. 84,000.

What this practically means

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Executive summary

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The Claimant, a security guard employed by Brinks Security Services Limited from around 2013, was assigned to guard the Kengen Kipevu Power Plant. Following a theft of copper tapes and damage to an electric fence at the assignment on 8th December 2015, he was issued a warning/recovery letter on 9th December 2015 surcharging him Kshs. 6,000. He claimed his employment was terminated verbally on 31st December 2015; the Respondent alternatively pleaded desertion but its Branch Manager confirmed summary dismissal for failure to patrol. The court framed two issues: whether the termination was unlawful and whether the remedies sought were due. Holding that no disciplinary process under Section 41 of the Employment Act was conducted, and that the Claimant was warned, surcharged and dismissed for the same offence - a classic case of double jeopardy - the court found the termination substantively and procedurally unfair. It awarded six months' salary in compensation, one month's notice pay and December 2015 salary, totalling Kshs. 84,000, with interest at court rates from the date of judgment, plus a certificate of service and costs. The claims for underpayment (unproved special damages) and refund of shares (held by Brinks Sacco, a separate legal entity) were dismissed. Judgment was delivered at Mombasa on 22nd October 2020 via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Whether the termination of the Claimant's employment was substantively and procedurally unfair

Holding

Termination was substantively and procedurally unfair; no valid reason established through due process and the employee was punished three times for the same offence

Reasoning

The Respondent's witness admitted the Claimant was dismissed for failing to patrol, leading to theft. The Claimant was not subjected to any disciplinary process under Section 41 of the Employment Act. The warning letter of 9th December 2015 imposed both a warning and a surcharge without hearing him, and he was then dismissed for the same offence - double jeopardy. Terminal dues were also unlawfully withheld.

p. 3
02

Whether the Claimant proved the claim for underpayment

Holding

Claim dismissed for failure of proof

Reasoning

Although figures were pleaded in the Memorandum of Claim, no evidence was adduced in support. Underpayment is special damages requiring specific pleading and proof, so the evidential burden was not discharged.

p. 3
03

Whether the Respondent was liable to refund the Claimant's shares

Holding

Claim misplaced as shares are held by Brinks Sacco, a separate legal entity

Reasoning

The Claimant admitted his shares were held by Brinks Savings and Credit Cooperative Society, a distinct body from the Respondent, so no liability attaches to the Respondent for the shares.

p. 3

Legal principles established

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  • Punishing an employee twice (warning/surcharge and dismissal) for the same offence constitutes double jeopardy and renders termination unfair
  • A claim for underpayment is special damages which must be specifically pleaded and proved at trial

Court orders

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  1. 1.Judgment entered in favour of the Claimant: 6 months' salary in compensation Kshs. 63,000
  2. 2.1 month's salary in lieu of notice Kshs. 10,500
  3. 3.Salary for December 2015 Kshs. 10,500 (total Kshs. 84,000)
  4. 4.Interest at court rates from the date of judgment until payment in full
  5. 5.Claimant entitled to a certificate of service
  6. 6.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (1)

  • Charles Kariuki Mwangi v Intersecurity Services Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

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, "Cyprian Mutembei Ndiga v Brinks Security Services Ltd [2020] KEELRC 316 (KLR)", Case Analysis (2020). Cause No 584 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/316/eng@2020-10-22

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