Cyprian Mutembei Ndiga v Brinks Security Services Ltd [2020] KEELRC 316 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was substantively and procedurally unfair
Termination was substantively and procedurally unfair; no valid reason established through due process and the employee was punished three times for the same offence
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.
Whether the Claimant proved the claim for underpayment
Claim dismissed for failure of proof
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.
Whether the Respondent was liable to refund the Claimant's shares
Claim misplaced as shares are held by Brinks Sacco, a separate legal entity
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the Claimant: 6 months' salary in compensation Kshs. 63,000
- 2.1 month's salary in lieu of notice Kshs. 10,500
- 3.Salary for December 2015 Kshs. 10,500 (total Kshs. 84,000)
- 4.Interest at court rates from the date of judgment until payment in full
- 5.Claimant entitled to a certificate of service
- 6.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.