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ELRCAllowedCause No 2461 of 2016· [2022] KEELRC 140 (KLR)

Charles Nyagaka Momanyi v K.K. Security [2022] KEELRC 140 (KLR)

Employment and Labour Relations Court
28 April 2022
1,377 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 awarded a dismissed guard 12 months' salary because his employer had no investigation report and followed a flawed disciplinary process.

What this practically means

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Executive summary

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The Claimant, employed as a Dog Handler from August 2005 at a monthly salary of Kshs. 21,089, was summarily dismissed on 30th July 2015 after being accused of sleeping on duty on the night of 22nd July 2015. He claimed one month's salary in lieu of notice, twelve months' compensation for unfair termination, and annual leave pay for 2015, totalling Kshs. 288,919, plus costs and interest. The Respondent conceded employment but defended the dismissal as procedurally fair and justified, asserting the Claimant was heard, appealed, and his appeal declined. In evidence, the Respondent's Human Resource Officer, Nerine Silwe, admitted that no investigation report was generated or availed, the Claimant was not interviewed by the investigator, the suspension letter doubled as the disciplinary hearing invitation, minutes of the disciplinary and appeal hearings were not exhibited, and appeal proceedings were unrecorded. The Court framed three issues: fairness of procedure, validity of reason, and entitlement to remedies. It found the procedure fundamentally flawed, and, absent the investigation report and the Night Manager's evidence, held that no valid reason for dismissal was established. Termination was declared unfair under Sections 41, 43 and 45 of the Employment Act, with the Respondent failing to justify the dismissal under Section 47para 5. Considering the Claimant's ten years of unblemished service and lack of contribution to the termination, the Court awarded twelve months' compensation, notice pay and annual leave pay in full, with costs to the Claimant and interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Whether termination followed a fair procedure under Section 41 of the Employment Act

Holding

Procedure was fundamentally flawed - suspension without pay, no investigation report, employee not interviewed, suspension letter doubling as hearing invitation, unrecorded appeal proceedings.

Reasoning

The Respondent conceded through its Human Resource Officer that several procedures were not observed. No investigator's report was produced, the Claimant was not interviewed by the investigator, the suspension letter served as the disciplinary hearing invitation, and minutes of the disciplinary and appeal hearings were not exhibited. The Court found the appellate proceedings unrecorded, making fairness impossible to verify, and concluded the procedure was fundamentally flawed.

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02

Whether the Respondent established a valid reason for dismissal under Section 43

Holding

No valid reason was established; the Night Manager and Investigator were not called as witnesses.

Reasoning

The allegation was that the Claimant was found sleeping on duty. The Claimant explained he was guarding at the back with a fierce dog and was called to the front. The Respondent did not discount these explanations. Without the Investigation Report or the evidence of the Night Manager, the Court could not find a valid reason was shown, the employer failing to discharge its burden under Section 47para 5.

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03

Whether the Claimant merits the remedies sought

Holding

Compensation of 12 months' salary, notice pay and annual leave pay awarded in full as claimed.

Reasoning

The Claimant served 10 years with a clean record and did not contribute to the termination. He was not paid terminal dues. The Respondent did not controvert the annual leave claim and exhibited no leave records showing utilization or cash in lieu. The Court awarded the full package claimed of Kshs. 288,919, plus costs and interest.

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Legal principles established

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  • An employer must generate and avail an investigation report and afford the employee a fair procedure before summary dismissal; failure renders termination unfair under Sections 41, 43 and 45 of the Employment Act.
  • The burden under Section 47para 5 of the Employment Act rests on the employer to justify the reason for termination.

Court orders

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  1. 1.It is declared that termination was unfair
  2. 2.Respondent to pay 12 months' salary as compensation for unfair termination at Kshs. 253,068
  3. 3.Respondent to pay one month's salary in lieu of notice at Kshs. 21,089
  4. 4.Respondent to pay annual leave pay for 2015 at Kshs. 14,762 (total Kshs. 288,919)
  5. 5.Costs to the Claimant
  6. 6.Interest allowed at court rates from the date of Judgment till payment is made in full

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 47[5]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45 and 47[5])

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, "Charles Nyagaka Momanyi v K.K. Security [2022] KEELRC 140 (KLR)", Case Analysis (2022). Cause No 2461 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/140/eng@2022-04-28

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