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ELRCPartially AllowedCause No 1495 of 2015· [2022] KEELRC 830 (KLR)

Alfred Ogenche Nchore v Kenya Kazi Services Limited [2022] KEELRC 830 (KLR)

Employment and Labour Relations Court
10 February 2022
JGJacob Gakeri
4,000 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing a security guard for sleeping on duty was unfair because his employer never tried lesser options like a warning first.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 15th July 2011 as a security officer on a fixed five-year contract serving the United States Embassy, was summarily dismissed on 10th February 2015 after being found asleep at his duty station. He claimed a declaration that the dismissal was unfair plus unpaid February salary, gratuity, 18 months' pay for the remaining contract, leave pay, one month's notice and 12 months' compensation. The Respondent justified the dismissal under Section 44(4)(c) of the Employment Act, citing the security-sensitive nature of the work, a photograph of the Claimant asleep, a client deduction of Kshs.17,173.69, and a disciplinary hearing attended with two union representatives. The court framed two issues: whether the summary dismissal was unfair and entitlement to reliefs. It found the procedure fair — the Claimant willingly attended the hearing, was represented, signed the report and raised no protest — but the reason for dismissal substantively unfair. With a clean record of three and a half years, a plausible explanation (medication), and alternatives such as surcharge, warning or redeployment not considered, a reasonable employer would not have dismissed on a first infraction. The dismissal was declared unfair. One month's notice pay of Kshs.30,657 and three months' compensation of Kshs.91,971 were awarded; claims for the 10 days' salary, gratuity, anticipatory earnings and leave pay were dismissed. Judgment of Kshs.122,628 was entered with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the reason for the summary dismissal — sleeping at the duty station — was a valid and fair reason under Section 45 of the Employment Act

Holding

The Respondent failed to prove a valid and fair reason; a reasonable employer would not dismiss on a first infraction with a plausible explanation and without considering surcharge, warning or redeployment.

Reasoning

The Claimant had a clean record of three and a half years, no prior warnings, and gave a plausible explanation (medication for a headache). RW1 confirmed the committee did not consider redeployment or surcharge. Applying the reasonable-employer standard and the principle that lawfulness is not fairness, the dismissal failed the substantive fairness test under Section 45(2).

p. 5
02

Whether the procedure adopted by the Respondent was fair under Section 41 of the Employment Act

Holding

The procedure was fair: the Claimant attended the disciplinary hearing willingly, was represented by two union representatives, signed the report and raised no protest about notice or language.

Reasoning

The court found the Claimant was invited, heard and signed the disciplinary report without contest. The language objection was speculative and not raised in evidence. Absence of minutes or a witness does not by itself invalidate a hearing that gave the employee an opportunity to be heard.

p. 5
03

What remedies flow from a finding of substantively unfair dismissal

Holding

The Claimant was awarded one month's salary in lieu of notice and three months' salary as compensation under Section 49, contribution to the dismissal having reduced the award.

Reasoning

Under Section 49(1)(c) the court considered the length of service (three and a half years), the Claimant's contribution to the dismissal by failing to seek sick leave, and the loss suffered. Anticipatory earnings for the unexpired contract are not recoverable; gratuity was excluded by contract clause 10(b).

p. 6

Legal principles established

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  • An employer bears the burden of proving a valid and fair reason for termination and that a fair procedure was followed, under Sections 43, 45 and 47(5) of the Employment Act.
  • A lawful ground for dismissal is not equated with a fair reason; fairness goes beyond lawfulness.
  • The reason for termination is measured against the standard of a reasonable employer.
  • Procedural compliance cannot cure the absence of substantive justification for dismissal.

Court orders

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  1. 1.Declaration that the Claimant's summary dismissal on 10th February 2015 was unfair
  2. 2.One month's salary in lieu of notice awarded at Kshs.30,657/-
  3. 3.Compensation under Section 49(1)(c) of the Employment Act equivalent to three months' salary at Kshs.91,971/-
  4. 4.Judgment entered for the Claimant against the Respondent for the sum of Kshs.122,628/- with costs
  5. 5.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment Act, 2007Section 44(4)(c)
  • Employment Act, 2007Section 45(2)(a),(b),(c)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (16)

  • Collins Osoro Lukhale v AAA Growers Ltd
    [2014] eKLR
  • Elizabeth Washeke and 62 Others v Airtel Networks (K) Ltd & another
    [2013] eKLR
  • Francis Ndirangu v Nakumatt Holdings Limited
    [2016] eKLR
  • Jonah Mwaura Ngugi v Safaricom PLC
    [2019] eKLR
  • Janet Nyandiko v Kenya Commercial Bank Ltd
    [2017] eKLR
  • Alphonse Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Moi Teaching and Referral Hospital v James Kipkonga Kendagor
    [2019] eKLR
  • Bamburi Cement Limited v Farid Aboud Mohammed
    [2016] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Kenafric Industries Limited v John Gitonga Njeru
    [2016] eKLR
  • Barasa Paul Isaac v X for Security Solutions (Ke) L.T.D
    [2015] eKLR
  • Council of Mining Unions v Chamber of Mines of SA
    (1985) 6 ILJ 293 (IC)
  • Samuel Mwangi Wachinga v Endarasha Farmers' Co-operative Society
    [2018] eKLR
  • Elizabeth Mukuhi Kimando v Karangi Coftea Ltd
    [2021] eKLR
  • D. K. Njagi Marete v Teachers Service Commission
    [2020] eKLR
  • Engineer Francis N. Gachuri v Energy Regulatory Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Alfred Ogenche Nchore v Kenya Kazi Services Limited [2022] KEELRC 830 (KLR)", Case Analysis (2022). Cause No 1495 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/830/eng@2022-02-10

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