Francis Gitau Kamau v Factory Guards Limited [2021] KEELRC 1559 (KLR)
The bottom line
#A Kenyan employer cannot dismiss a worker without a hearing, even if that worker has been arrested and detained by police.
What this practically means
#Executive summary
#Key legal issues
#Whether arrest and detention for a cognizable offence justifies dismissal without a hearing
No. The employer must still observe the procedural guarantees under Section 41 and 45 of the Employment Act before summary dismissal.
The Court adopted Rika J.'s reasoning in Lawrence Onyango Oduori v Kenya Commercial Bank Ltd that Section 44 merely specifies acts amounting to gross misconduct justifying summary dismissal; it does not dispense with the right to be heard. The Respondent knew where the Claimant was and was privy to the criminal case, so it could have triggered a hearing under Section 41 before dismissing him.
Whether the Claimant's employment was governed by the Regulation of Wages (Protective Security Services) Order, 1998
Yes, and the Claimant is entitled to gratuity at 18 days for each completed year of service under that Order.
The Court found the Order applicable to the Claimant's employment and awarded gratuity accordingly, treating the gratuity claim favourably in the interest of fairness and non-discrimination, since his co-accused colleague had been paid gratuity.
Whether the Claimant proved entitlement to leave pay
No. The Claimant failed to prove untaken leave.
The Respondent exhibited leave records and a leave application form dated 6 November 2012 showing nil leave due as at November 2012; the Claimant did not question or deny the exhibit and did not prove entitlement to additional leave days.
Legal principles established
#- Section 44(4)(f) of the Employment Act permits summary dismissal but does not discard the procedural protections of Section 41; the right to be heard before dismissal is never discarded, even where the employee is arrested and detained.
Court orders
#- 1.Kshs. 16,692.90 being salary for November 2012
- 2.Gratuity at 18 days for each completed year of service under the Regulation of Wages (Protective Security Services) Order, 1998 - Kshs. 170,267.58
- 3.Costs of the suit to the Claimant
- 4.Interest at court rates on the sums in (a) and (b) from date of judgment until payment in full
- Jurisdiction invoked
- Article 162(2) jurisdiction of the Employment and Labour Relations Court as invoked under the Employment and Labour Relations Court (Procedure) Rules 2016 (Rule 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Gitau Kamau v Factory Guards Limited [2021] KEELRC 1559 (KLR)", Case Analysis (2021). Not stated in judgment (ELRC claim, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1559/eng@2021-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.