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ELRCPartially AllowedCause No. 56 of 2015· [2020] KEELRC 1642 (KLR)

George Ocharo v Nine One One Security Group Limited [2020] KEELRC 1642 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
6 February 2020
MMM. Mbaru
1,638 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 was unfair because his employer had no genuine reason and kept incomplete disciplinary records.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from January 2005 until 13th November 2014, was summarily dismissed after he was accused of keeping a spare key to a client's CCTV room at Merika Hotel, Nakuru, contrary to standing regulations. He claimed the dismissal was procedurally unfair under section 41 of the Employment Act, 2007, that the disciplinary hearing was biased, and sought underpayment of Ksh.128,095.60, compensation and costs. The respondent defended the dismissal as for breach of trust, asserting the claimant received a show cause notice, replied, and attended a disciplinary hearing with two shop stewards, and that terminal dues were paid. The court applied the settled test that fair termination requires both substantive justification and procedural fairness, citing Walter Ogal Anure v Teachers Service Commission and Paul Wachiuri Ndonga v Keroche Breweries Ltd. It found the claimant's explanation for obtaining a spare key (his key jammed and broke, and he took the spare from Omwenga in the presence of Nyambene and returned it) reasonable and free of criminal conduct; the employer's failure to interrogate the witnesses undermined the charge. The disciplinary minutes filed were incomplete, a single page, so the court could not ascertain the fullness of the hearing. Nonetheless, the court found no valid reasons justified the termination but, noting the respondent had promptly paid terminal dues and was in good standing under section 45(5), limited compensation to one month's gross wage of Ksh.12,011. The underpayment claim failed as the wage was in tandem with applicable wage orders. Each party was ordered to bear own costs. Judgment delivered at Nakuru on 6th February 2020 by M. Mbaru, Judge.

Key legal issues

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01

Substantive justification for the summary dismissal

Holding

No valid reason existed to justify the termination; the claimant's explanation for having another key was reasonable and did not reflect criminal conduct

Reasoning

The claimant explained that his key jammed and broke, and he obtained a spare key from Omwenga in the presence of Nyambane, returning it afterwards. The court found this a reasonable explanation negating criminal conduct. Where the employer alleged the key was kept for criminal activity, the witnesses ought to have been interrogated, which was not done. Relying on sections 43 and 45 of the Employment Act, the court found no genuine and valid reasons for termination.

p. 3
02

Procedural fairness under section 41

Holding

Although the claimant attended a disciplinary hearing with shop stewards, the minutes filed were incomplete, making it impossible to ascertain the fullness and completeness of the hearing

Reasoning

The respondent issued a show cause notice and convened a disciplinary hearing attended by two shop stewards, but the minutes produced were only one page. The court could not verify the completeness of the hearing record or the outcome of the charges. Even with due process under section 41, the employer still had to satisfy section 43 on valid reasons, which it failed to do.

p. 3
03

Claim for underpayment of wages

Holding

The claim for underpayment failed as the wage paid was consistent with the applicable wage orders

Reasoning

The claimant was a guard working in Nakuru in 2014 earning Ksh.12,011. The court found this pay was in tandem with the applicable wage orders for that station and year, so no basis was set out for the underpayment claim of Ksh.128,095.60.

p. 3

Legal principles established

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  • Fair termination of employment requires both substantive justification and procedural fairness
  • The reasons for termination are the matters the employer genuinely believed to exist at the time of termination
  • Payment in lieu of notice is not sufficient; the employer must have genuine and valid reasons for termination

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for payment of compensation at Ksh.12,011 (one month's gross wage)
  2. 2.Each party to pay own costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45 and section 45(5)(a) and (c)

Cases cited (2)

  • Walter Ogal Anure versus Teachers Service Commission
  • Paul Wachiuri Ndonga versus Keroche Breweries Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination 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, "George Ocharo v Nine One One Security Group Limited [2020] KEELRC 1642 (KLR)", Case Analysis (2020). Cause No. 56 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1642/eng@2020-02-06

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