Omondi & 2 others v Hatari Security Guards Limited (Cause 2424 of 2017) [2022] KEELRC 1313 (KLR)
The bottom line
#A Kenyan court ruled three security guards were unfairly fired because their employer followed no fair procedure, and payment certificates did not block their claims.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of termination of the 1st and 2nd Claimants
The respondent failed to prove valid and fair reasons for the dismissal; the allegations of fuel siphoning and forged signatures were unsupported by credible evidence.
RWI led no evidence of any investigation, produced neither the jerrycan nor the vehicle registration, and the checklist with alleged forged signatures was never produced. No police report or complaint supported the allegations. On a balance of probability, the essential evidence was missing, so the reasons for termination were not justified.
Substantive fairness of termination of the 3rd Claimant
The respondent proved a valid and fair reason for dismissing the 3rd Claimant (assault of and threats to the Deputy General Manager reported under a police OB number).
The court found the allegation of verbal and physical assault of the Deputy General Manager and subsequent public threats credible. Although the Claimant was not arrested, the OB number was sufficient evidence the matter was reported to police, and the Claimant did not request the OB particulars. The dismissal reason was therefore proved on a balance of probability.
Procedural fairness
All three terminations were procedurally flawed and unlawful as section 41 of the Employment Act was totally disregarded.
No notices to show cause were issued, no disciplinary hearing minutes were produced, and the 3rd Claimant's termination letter made no reference to a hearing. None of the Claimants was notified of the grounds for termination or given the opportunity to be accompanied by a fellow employee and make representations. The alleged meeting of 28th September 2017 was not proven.
Effect of the Certificate of Payment executed by the 1st and 2nd Claimants
The certificates did not waive the Claimants' rights to pursue further claims because they lacked a tabulation of terminal dues.
Relying on Evans Zimbaso Indege and distinguishing the discharge voucher cases, the court held that absent a tabulation of entitlements, employees lack essential information to make an informed decision on accepting payment, so the waiver clause was ineffective.
Remedies
Compensation under section 49(1)(c) awarded at 4 months' gross salary for the 1st and 2nd Claimants and 3 months for the 3rd, plus pay in lieu of notice, actual pending leave days and certificates of service; other heads declined as unproved special damages.
Other than the discretionary 12 months' compensation, the claims are species of special damages requiring strict proof. The court considered duration of employment (about 9-10 years), absence of prior warnings, and the 3rd Claimant's substantial contribution to his dismissal in fixing the quantum.
Legal principles established
#- For a termination to pass muster it must satisfy both substantive and procedural fairness under sections 43, 45 and 41 of the Employment Act
- A discharge voucher or certificate of payment without tabulation of entitlements does not waive an employee's right to pursue further claims
- Special damages must be pleaded and strictly proved
- The employer bears the burden of proving the reasons for termination
Court orders
#- 1.A declaration that the dismissal of the Claimants by the respondent was unfair and unlawful
- 2.Payment in lieu of notice to all Claimants
- 3.Payment of the actual number of pending leave days
- 4.Equivalent of 4 months gross salary as compensation for the 1st and 2nd Claimants
- 5.Equivalent of 3 months gross salary as compensation for the 3rd Claimant
- 6.Certificate of service to the Claimants
- 7.All other prayers declined
- 8.Costs of the suit to the Claimants
- 9.Interest at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance statement of claim filed 7th December 2017)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Goodlife Pharmacy Limited v Odhiambo (Appeal E069 of 2024) [2025] KEELRC 1423 (KLR)[2025] KEELRC 1423 (KLR)14 May 2025
Cite this brief
#Cite this brief
Caselaw, "Omondi & 2 others v Hatari Security Guards Limited (Cause 2424 of 2017) [2022] KEELRC 1313 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1313/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.