Samwel Onderi Choi v Absolute Security Limited [2021] KEELRC 977 (KLR)
The bottom line
#A Kenyan court ruled a security guard's firing for being 40 minutes late was unfair, awarding him compensation, notice pay and costs.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in unfair termination complaints
Section 47(5) places on the employee only the burden of proving that a dismissal occurred; the burden of justifying the grounds for termination rests on the employer. The respondent's contrary reading was a misappropriation of the provision.
The court read section 47(5) literally: the employee proves the occurrence of unfair termination or wrongful dismissal, while the employer justifies the grounds. The respondent's submission that the employee must also prove unfairness was rejected as a misuse of the provision and of the judicial attention it had received.
Procedural fairness under section 41 of the Employment Act
The dismissal was not procedurally fair. The respondent failed to prove that the claimant was notified of a contemplated summary dismissal, invited to make representation, or allowed a colleague or union representative at any disciplinary hearing.
A hearing need not be oral and may be by exchange of letters, but before written representation can count, the employer must make the employee aware of the contemplated action and its grounds. The claimant's 24th June 2014 letter merely explained lateness. The respondent produced no notice to show cause, no minutes, and RW1's evidence on when the hearing occurred was contradictory; his endorsement on the claimant's letter showed the decision was already sealed.
Substantive fairness - whether lateness amounted to gross misconduct under section 44
The dismissal was not substantively fair. Being 40 minutes late to a new, unfamiliar station, without employer facilitation, was not repudiatory gross misconduct justifying summary dismissal.
Section 44(3) and (4) demand a fundamental, repudiatory breach. Having relied on loss of a client to justify dismissal, the respondent had to prove the contract termination but produced no document; the termination letter itself only referred to an ultimatum. The court believed the claimant lost his way, found no prior incidents of lateness, and noted the supervisor was not called, leaving RW1's testimony hearsay.
Underpayment contrary to wages orders
The claimant was underpaid by Kshs. 908.70 for the period May 2013 to 1st July 2014, but no underpayment existed for May–December 2012 and January–April 2013 under the then-applicable wages orders.
Section 48(1) of the Labour Institutions Act makes wages order rates terms of the contract. Applying the 2012 Order (Kshs. 428 daily inclusive of house allowance) there was no underpayment for late 2012 and early 2013; the 2013 Order (Kshs. 487.90) yielded a daily shortfall of Kshs. 69.90 from May 2013, cumulatively Kshs. 908.70. Failure to complain earlier was no waiver, and the claim was partly time-barred under section 90.
Leave pay
No leave pay awarded. Once the respondent produced an approved leave application form, the evidential burden shifted to the claimant to disprove authenticity, which he failed to do.
The claimant alleged the leave form's signature was forged but produced no proof. The court held he did not discharge the shifted evidential burden and declined any award under this head.
Legal principles established
#- The employee bears the burden of proving the fact of dismissal; the employer then bears the burden of justifying the termination as substantively and procedurally fair
- A written explanation made before the employee is informed of a contemplated summary dismissal does not satisfy the hearing requirement of section 41 of the Employment Act
- Summary dismissal is reserved for gross misconduct of the most serious, repudiatory character and mere lateness of 40 minutes occasioned by lack of employer facilitation does not qualify
- An employee's failure to protest an underpayment to his employer does not constitute a waiver of the entitlement
Court orders
#- 1.Declaration that the termination of the claimant's employment was both substantively and procedurally unfair
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act in the sum of Kshs. 62,832 (four months' gross salary)
- 3.One month's salary in lieu of notice - Kshs. 15,708
- 4.Underpaid salary - Kshs. 908.70
- 5.Costs of the suit to the claimant
- 6.Interest on the award
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (article 162(2) Constitution not expressly cited; claim founded on sections 35, 36, 41, 43, 44, 45, 47, 49, 74 and 90 of the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- G4S Kenya Ltd v Mutinda & another (Employment and Labour Relations Appeal E018 & E019 of 2023 (Consolidated)) [2025] KEELRC 2047 (KLR)[2025] KEELRC 2047 (KLR)4 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Samwel Onderi Choi v Absolute Security Limited [2021] KEELRC 977 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/977/eng@2021-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.