Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment as provided· [2020] KEELRC 665 (KLR)

Machoka Jared Omache v Bob Morgan Services Limited [2020] KEELRC 665 (KLR)

Employment and Labour Relations Court
9 April 2020
1,615 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled a guard's dismissal unfair because the employer proved neither negligence nor gave him a proper disciplinary hearing.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a dog handler/night guard from 20th October 2010 at a monthly salary of Kshs. 16,907, was summarily dismissed on 26th May 2017 following an armed intrusion at the Bonfide Changamwe Yard on the night of 7th/8th May 2017, during which he hid rather than confronting the machete-armed intruders. He claimed compensation for unlawful termination and terminal dues. The Respondent maintained that the Claimant was accorded a disciplinary hearing on 20th May 2017, admitted contravening Standard Operating Procedures, and agreed to be surcharged. The Employment and Labour Relations Court at Machakos (Linnet Ndolo, J) framed two issues: whether the dismissal was lawful and fair, and whether the remedies sought were payable. The Court held that negligence, if proved, is a valid ground for dismissal, but applying the reasonable responses test from CFC Stanbic Bank v Danson Mwashako Mwakuwona, the Respondent failed to establish negligence - particularly as the disciplinary panel itself had noted the site was exposed due to inadequate lighting and fencing, a factor not considered before dismissal. Procedurally, the Respondent's witness admitted he did not attend the disciplinary meeting, and the Claimant's name and signature did not appear in the record of proceedings; his testimony of having no hearing was unchallenged. The dismissal was therefore unfair. The Court awarded 8 months' salary in compensation, notice pay, admitted dues (May 2017 salary, 6 accumulated off days, uniform refund), totalling Kshs. 175,951 with interest, plus a certificate of service and costs. The 2013 leave claim was held time-barred under Section 90 of the Employment Act.

Key legal issues

#
01

Whether the Claimant's dismissal for gross misconduct (negligence) was lawful and fair

Holding

The dismissal was both substantively and procedurally unfair: no negligence was established and no disciplinary hearing was proved to have been held

Reasoning

The dismissal letter accused the Claimant of negligent performance of duty. The Court found that the Claimant and colleagues were attacked by armed intruders and that the panel itself had noted the assignment was exposed due to inadequate lighting and fencing, which was not considered. The Respondent's witness admitted he was not at the disciplinary meeting, no invitation was produced, and the Claimant's name and signature did not appear in the record of proceedings, leaving his testimony that he was never heard unchallenged.

p. 3
02

Whether the Claimant was entitled to the remedies sought

Holding

Claimant awarded 8 months' salary in compensation, one month's notice pay, admitted dues (May salary, off days, uniform refund), certificate of service and costs; the 2013 leave claim was time-barred

Reasoning

In exercising the discretion on compensation under the Employment Act, the Court considered the Claimant's length of service, employment record and the Respondent's failure to follow the law. Claims for May salary, accumulated off days and uniform refund were admitted. The leave claim for 2013 fell outside the limitation period under Section 90.

p. 3

Legal principles established

#
  • An employer who fails to establish negligence on the part of an employee has no valid reason for dismissal under Section 43 of the Employment Act
  • Whether an employee acted reasonably (and hence negligently) must be determined at an internal disciplinary hearing as required under Section 41 of the Employment Act
  • In assessing the fairness of dismissal, the Court applies the reasonable responses test, judging the employer's decision against the standard of a reasonable employer

Court orders

#
  1. 1.8 months' salary in compensation (Kshs. 135,256)
  2. 2.1 month's salary in lieu of notice (Kshs. 16,907)
  3. 3.Unpaid salary for May 2017 (Kshs. 16,907)
  4. 4.6 accumulated off days in May 2017 (Kshs. 3,381)
  5. 5.Uniform refund (Kshs. 3,500)
  6. 6.Total award of Kshs. 175,951 with interest at court rates from the date of judgment until payment in full
  7. 7.Certificate of service to be issued to the Claimant
  8. 8.Costs of the case to the Claimant

Authorities

#

Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 43
  • Employment Act 2007Section 90
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40

Cases cited (1)

  • CFC Stanbic Bank v Danson Mwashako Mwakuwona
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 41, 43, 45, 49 and 90 referred to)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Machoka Jared Omache v Bob Morgan Services Limited [2020] KEELRC 665 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/665/eng@2020-04-09

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