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ELRCDismissedCause No. 83 of 2017· [2020] KEELRC 1914 (KLR)

Joseph Ndombi v Kenya Kazi Services Ltd [2020] KEELRC 1914 (KLR)

Employment and Labour Relations Court
23 October 2020
ANAbuodha Jorum Nelson
1,269 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld the dismissal of a security guard who lost property under his watch, confirming employers can dismiss for negligence with fair process.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from November 2010, was summarily dismissed in December 2013 after 14 of 81 scrap batteries he was assigned to guard at Rai Plywoods Limited went missing overnight. He alleged wrongful and unfair termination, denial of a fair hearing, lack of investigation, and non-payment of terminal dues. The respondent maintained he was a poor worker with prior warning letters for sleeping on duty and fighting, that investigations implicated him, and that he was given a show cause letter, invited to and attended a disciplinary hearing with his union shop steward, and was paid his terminal dues. The court found the claimant did not deny guarding the batteries or the loss of 14, but failed to account for the loss; coupled with prior warnings for sleeping on duty, this established negligent performance. Relying on section 43(2) of the Employment Act, the court held the employer had genuinely held, justifiable reasons for termination. On procedure, the court was persuaded by the respondent's documents that proper procedure was followed, noting the claimant never filed a reply to the memorandum of response nor disputed the warning letters before trial, so his trial denial was not in good faith. The claim was found without merit and dismissed with costs. Judgment was dated and delivered at Nairobi on 23rd October 2020 by Abuodha Jorum Nelson, Judge.

Key legal issues

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01

Whether there were justifiable reasons for termination

Holding

Yes - the claimant failed to account for the loss of 14 batteries under his guard and had prior warnings for negligence

Reasoning

The claimant did not deny assignment to guard 81 batteries or that 14 went missing; he failed to explain the loss. Prior warning letters for sleeping on duty evidenced negligent performance, and the duty of a security guard demands high alertness. Under section 43(2) of the Employment Act the employer's genuinely held belief suffices.

p. 2
02

Whether a fair procedure was followed

Holding

Yes - the court was persuaded from the respondent's documents that proper procedure, including show cause and disciplinary hearing, was followed

Reasoning

The respondent produced a show cause letter, notice of disciplinary hearing and proceedings; the claimant attended with his union's shop steward. The claimant's denial of knowledge of these documents at trial was found not to be made in good faith, as he never filed a reply to the memorandum of response nor disputed the documents before trial.

p. 2

Legal principles established

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  • The reasons for termination are those the employer genuinely believed to exist at the time of termination under section 43(2) of the Employment Act
  • A security guard's failure to account for loss of property under guard, coupled with prior warnings for sleeping on duty, establishes justifiable reasons for termination

Court orders

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  1. 1.The claim is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 43(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; ELRC Act)

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, "Joseph Ndombi v Kenya Kazi Services Ltd [2020] KEELRC 1914 (KLR)", Case Analysis (2020). Cause No. 83 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1914/eng@2020-10-23

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