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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 428 (KLR)

David Oduor Omondi v Mars Security Guards Limited [2022] KEELRC 428 (KLR)

Employment and Labour Relations Court
17 March 2022
MNMathews N. Nduma
1,852 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 security guard over Kshs 243,000 because his employer fired him without notice, a hearing, or a proven reason.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from February 2007 and latterly on a two-year fixed term contract from 13th January 2015, was summarily dismissed on 20th May 2015 after an armed robbery at a client's premises while he was on duty. He sought notice pay, service pay, unpaid leave, overtime, NSSF refunds, uniform refund, May salary and compensation for unfair termination. The respondent defended the dismissal as lawful, alleging negligence and loss of a client contract, and asserted the claimant was on a fixed term contract with benefits paid. The court found the dismissal unfair: the respondent produced no evidence of a disciplinary hearing or valid reason, and the police had exonerated the claimant by letter dated 17th August 2015, which the employer ignored, dismissing him the same day. The dismissal violated Sections 36, 41, 43 and 45 of the Employment Act, entitling the claimant to compensation under Section 49. The court awarded the equivalent of 10 months' salary (Kshs 132,330), applying the Supreme Court decision in Kenfreight (EA) Limited v Benson K. Nguti and Bansio Ngota v Market Masters Limited, plus Kshs 36,000 notice pay under the CBA, gratuity of Kshs 71,442 for nine years at 18 days' salary per year, and Kshs 4,000 uniform refund, totalling Kshs 243,772, with interest and costs. Claims for nine years' unpaid leave and overtime were dismissed for want of proof.

Key legal issues

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01

Validity of reason and fairness of procedure for summary dismissal

Holding

The dismissal was unfair - no valid reason proved and no fair procedure followed

Reasoning

The respondent blamed the claimant for negligence but adduced no evidence of a disciplinary hearing or finding. The police exonerated the claimant by letter dated 17th August, 2015, which the employer ignored and dismissed him the same day. The dismissal therefore violated Sections 36, 41, 43 and 45 of the Employment Act and the claimant was entitled to compensation under Section 49.

p. 3
02

Compensation quantum under Section 49 of the Employment Act

Holding

Equivalent of 10 months' salary awarded

Reasoning

The court considered that the claimant served diligently for 9 years, was dismissed on mere suspicion without terminal benefits, and the respondent disregarded police advice. Following Kenfreight (EA) Limited v Benson K. Nguti and Bansio Ngota v Market Masters Limited, compensation of 10 months' salary (Kshs 132,330) was awarded.

p. 3
03

Burden of proof for leave and overtime claims

Holding

Claims dismissed for want of proof

Reasoning

The claimant failed to satisfactorily prove that he did not take annual leave for nine years and that he worked overtime on weekdays, weekends and public holidays without pay for that period.

p. 3

Legal principles established

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  • Summary dismissal without notice, notice to show cause or a disciplinary hearing violates Sections 36, 41, 43 and 45 of the Employment Act
  • The employer bears the burden of proving a valid reason for termination and a fair procedure

Court orders

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  1. 1.Kshs 132,330 in compensation
  2. 2.Kshs 36,000 in lieu of 3 months notice per Collective Bargaining Agreement
  3. 3.Kshs 71,442 being gratuity for 9 years at the rate of 18 days salary for each completed year of service
  4. 4.Refund of uniform – Kshs 4,000
  5. 5.Total award: Kshs 243,772
  6. 6.Interest at Court rates from date of judgment till payment in full
  7. 7.Costs of the suit

Authorities

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Legislation

  • Employment ActSections 36, 41, 43, 45, 49(1) and 4

Cases cited (2)

  • Kenfreight (EA.) Limited –vs- Benson K. Nguti
    (2018) eKLR
  • Bansio Ngota –vs- Market Masters Limited
    ELRC Cause No. 438 of 2016
Jurisdiction invoked
Original jurisdiction under the Employment Act (unfair termination claim; not expressly stated in judgment)

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, "David Oduor Omondi v Mars Security Guards Limited [2022] KEELRC 428 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/428/eng@2022-03-17

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