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ELRCDismissedNot stated in the judgment text· [2022] KEELRC 1085 (KLR)

Alphaeus Kipkoskei Tarus v Group 4 Security Sevices (K) Ltd [2022] KEELRC 1085 (KLR)

Employment and Labour Relations Court
11 January 2022
DNDavid Nderitu
2,838 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a summary dismissal, ruling that a bribe allegation proven on a balance of probability was valid grounds, and denied all compensation.

What this practically means

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Executive summary

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In this Employment and Labour Relations Court cause at Nakuru, the Claimant, formerly employed as a Crew Commander from November 2001 until his summary dismissal on 23rd September 2014, sought a declaration that his dismissal was unfair, wrongful, unlawful and illegal, payment of Kshs.121,392, a certificate of service and costs. The Respondent maintained that the dismissal was lawful in substance and procedure because the Claimant failed to lead his response crew to an activation at Biashara Plaza, later joined the crew in harassing an arrested student, and solicited and obtained a Kshs.4,000 bribe. The court condensed the issues into whether the summary dismissal was fair and lawful, entitlement to remedies, and costs. On substance, the court found on a balance of probability that the Claimant participated in an extortion scheme, giving the Respondent a valid reason under Sections 43 and 44 of the Employment Act; the absence of a criminal charge was immaterial since civil proof is on a balance of probability. On procedure, Form GD3 notified the Claimant of the charges, hearing date and his rights; he attended the hearing, questioned his accusers and gave a defence, satisfying Section 41 of the Employment Act, Section 4 of the Fair Administrative Actions Act and Article 47 of the Constitution. The claim for compensation and severance failed since severance applies only to redundancy; no proof of further dues was adduced. The cause was dismissed with each party bearing own costs, but the Respondent was ordered to issue a certificate of service within 30 days.

Key legal issues

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01

Substantive fairness of the summary dismissal

Holding

The Respondent had a valid reason under Sections 43 and 44(4) of the Employment Act; the Claimant abdicated his duties and took part in extorting Kshs.4,000 from an arrested person

Reasoning

The court weighed the suspension letter, GD3 notice, investigation report and hearing minutes. On a balance of probability it accepted evidence that the Claimant, as crew commander, joined his crew in harassing an arrested student and soliciting a bribe. Absence of a criminal charge was immaterial because civil proof is on a balance of probability. The Respondent therefore genuinely believed in the gross misconduct.

p. 3
02

Procedural fairness of the summary dismissal

Holding

The Respondent complied with Section 41 of the Employment Act, Section 4 of the Fair Administrative Actions Act and Article 47 of the Constitution

Reasoning

The Claimant was notified of the charges, time and place of hearing through Form GD3 issued with the suspension letter; his rights before, during and after the hearing were spelt out; he attended the hearing, questioned the accusers and stated his defence. Disciplinary proceedings need not follow the technical formalities of a trial, and no evidence of an appeal was tendered.

p. 4
03

Entitlement to remedies

Holding

No compensation or severance payable for a lawful summary dismissal; only a certificate of service under Section 51 was awarded

Reasoning

Since the dismissal was lawful, severance under Section 40 (redundancy) and compensation for unfair termination both fail. The Claimant was paid 23 days worked, overtime and house allowance netting Kshs.8,174, and produced no proof of further entitlements such as pending leave or unpaid overtime.

p. 4

Legal principles established

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  • Proof in civil cases, including employment disputes over gross misconduct, is on a balance of probability and does not require a criminal charge or conviction
  • Disciplinary hearings are not court proceedings and need not comply with the technical rules of procedure and evidence applicable in a trial court
  • An employer who establishes both valid reason and fair procedure meets the requirements of Sections 41, 43 and 45 of the Employment Act

Court orders

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  1. 1.The Respondent is ordered to deliver a certificate of service under Section 51 of the Employment Act to the Claimant's counsel within 30 days of the date of the judgment
  2. 2.The cause is dismissed with each party bearing own costs

Authorities

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Legislation

  • Employment ActSections 40, 41, 42, 43, 44(1), 44(3), 44(4)(e), 44(4)(g), 45, 51
  • Fair Administrative Actions ActSection 4
  • Constitution of KenyaArticle 47
  • Civil Procedure Act (Cap 21)Section 27

Cases cited (3)

  • Walter Ogal Anuro VS. Teachers Service Commission
    (2013) eKLR
  • Loice Otieno VS Kenya Commercial Bank Limited
    (2013) eKLR
  • Mary Chemweno VS. Kenya Pipeline Company Limited
    (2014) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act

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, "Alphaeus Kipkoskei Tarus v Group 4 Security Sevices (K) Ltd [2022] KEELRC 1085 (KLR)", Case Analysis (2022). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1085/eng@2022-01-11

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