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ELRCAllowedCause No 570 of 2017· [2022] KEELRC 537 (KLR)

Dennis Nyamweya Sibota v Deeway Security Limited [2022] KEELRC 537 (KLR)

Employment and Labour Relations Court
11 March 2022
SRStella Rutto
1,830 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from March 2015 on a monthly salary of Kshs 14,000/= and stationed at China Road & Bridge Corporation offices, was arrested in December 2015 following the reported theft of a laptop. Upon release on bail he reported to resume duty but was verbally informed he was no longer an employee. He was not paid his December 2015 salary and was never given a hearing. He was later acquitted of the criminal charges after the respondent failed to present witnesses. The respondent neither entered appearance nor filed a defence, and the matter proceeded by way of formal proof, with the claimant testifying and adopting his witness statement and documents. The court framed two issues: whether the termination was unfair and unlawful, and whether the claimant was entitled to the reliefs sought. Applying sections 41, 43(1) and 45(2) of the Employment Act, the court held that the employer bore the burden of proving valid reasons and fair procedure; in the absence of a defence that burden was undischarged, and the claimant's unchallenged testimony established that no reasons were communicated and no hearing was conducted. The court adopted the Court of Appeal's summary in Janet Nyandiko v Kenya Commercial Bank Ltd on the twin limbs of substantive justification and procedural fairness. Judgment was entered for the claimant: compensatory damages of Kshs 44,188/= (four months' gross salary, given his service of less than a year), one month's notice pay of Kshs 11,047/=, and December 2015 salary of Kshs 11,047/=, totalling Kshs 66,282/=, with interest at court rates from the date of judgment and costs of the suit. Judgment was delivered virtually under COVID-19 directions.

Key legal issues

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01

Whether the claimant's termination was unfair and unlawful

Holding

The termination was unfair and unlawful; the respondent, having filed no defence, failed to discharge the statutory burden under sections 41, 43(1) and 45(2) of the Employment Act.

Reasoning

The respondent neither entered appearance nor defended the claim, so no reasons for termination were proffered for evaluation. Section 43(1) places the burden of proving reasons on the employer, and section 45(2) requires proof of valid and fair reasons plus fair process. There was no evidence of notification of reasons or of a disciplinary hearing. The claimant's unchallenged testimony therefore stood, and the termination fell below the statutory threshold.

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02

Whether the claimant is entitled to the reliefs sought

Holding

The claimant was awarded four months' salary as compensatory damages (having worked less than a year), one month's notice pay, and December 2015 salary, with interest and costs.

Reasoning

Having found unfair termination, the court exercised discretion under section 49 of the Employment Act to award compensation equivalent to four months' gross salary, taking into account the claimant's short service of less than a year. Notice pay was awarded, and December 2015 salary was granted since there was no contrary evidence. Interest from the date of judgment and costs of the suit followed.

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Legal principles established

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  • An employer bears the burden of proving valid and fair reasons for termination and compliance with fair procedure; failure renders a termination unfair.
  • Fairness of termination requires both substantive justification and procedural fairness under sections 41, 43 and 45 of the Employment Act.

Court orders

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  1. 1.Compensatory damages of Kshs 44,188/= equivalent to 4 months gross salary
  2. 2.One month's salary in lieu of notice of Kshs 11,047/=
  3. 3.Salary for December 2015 of Kshs 11,047/=
  4. 4.Total award of Kshs 66,282/=
  5. 5.Interest on the total award at court rates from the date of judgment till payment in full
  6. 6.Claimant to have the costs of the suit

Authorities

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Legislation

  • Employment Actsections 41, 41(1), 43, 43(1), 45(2), 45(2)(a) and (b), 45(2)(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (3)

  • Gibson D. Mwanjala vs Kenya Revenue Authority
    (2015) eKLR
  • Jaffar Mohamed vs Ready Consultancy Co. Ltd
    (2015) eKLR
  • Janet Nyandiko versus Kenya Commercial Bank Limited
    [2017] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (establishment of the Employment and Labour Relations Court); claim instituted by memorandum of claim under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dennis Nyamweya Sibota v Deeway Security Limited [2022] KEELRC 537 (KLR)", Case Analysis (2022). Cause No 570 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/537/eng@2022-03-11

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