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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 1313 (KLR)

Omondi & 2 others v Hatari Security Guards Limited (Cause 2424 of 2017) [2022] KEELRC 1313 (KLR)

Employment and Labour Relations Court
14 July 2022
5,473 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a statement of claim filed on 7th December 2017, three security guards sued Hatari Security Guards Ltd alleging unlawful, unfair and unprocedural termination of employment, seeking declarations, compensation, pay in lieu of notice, gratuity, uniform allowance, unpaid leave, overtime and certificates of service. The 1st and 2nd Claimants were dismissed on 29th September 2017 over the alleged siphoning of fuel from a motorbike and forged checklists; the 3rd Claimant was dismissed on 14th November 2017 for alleged verbal and physical assault of and threats to the Deputy General Manager. The respondent denied the allegations and relied on certificates of payment executed by the 1st and 2nd Claimants as a waiver of further claims. The court framed three issues: fairness of the terminations, the effect of the certificates of payment, and entitlement to remedies. It found that the respondent adduced no credible evidence to justify the dismissal of the 1st and 2nd Claimants, but proved a valid reason for dismissing the 3rd Claimant based on the police OB number. However, all three terminations were procedurally unfair, as no notices to show cause were issued and no proven hearings were conducted, contrary to section 41 of the Employment Act. The court held that the certificates of payment, lacking tabulation of entitlements, did not waive the Claimants' rights. Compensation of four months' gross salary was awarded to the 1st and 2nd Claimants and three months to the 3rd, plus pay in lieu of notice, actual pending leave days and certificates of service. Gratuity, uniform allowance, unpaid September salary and overtime were declined as unproved special damages. Costs were awarded to the Claimants with interest at court rates.

Key legal issues

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01

Substantive fairness of termination of the 1st and 2nd Claimants

Holding

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.

Reasoning

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.

p. 7
02

Substantive fairness of termination of the 3rd Claimant

Holding

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).

Reasoning

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.

p. 8
03

Procedural fairness

Holding

All three terminations were procedurally flawed and unlawful as section 41 of the Employment Act was totally disregarded.

Reasoning

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.

p. 9
04

Effect of the Certificate of Payment executed by the 1st and 2nd Claimants

Holding

The certificates did not waive the Claimants' rights to pursue further claims because they lacked a tabulation of terminal dues.

Reasoning

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.

p. 10
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Remedies

Holding

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.

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.A declaration that the dismissal of the Claimants by the respondent was unfair and unlawful
  2. 2.Payment in lieu of notice to all Claimants
  3. 3.Payment of the actual number of pending leave days
  4. 4.Equivalent of 4 months gross salary as compensation for the 1st and 2nd Claimants
  5. 5.Equivalent of 3 months gross salary as compensation for the 3rd Claimant
  6. 6.Certificate of service to the Claimants
  7. 7.All other prayers declined
  8. 8.Costs of the suit to the Claimants
  9. 9.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43(1) and 43(2)
  • Employment Actsection 45(2)(c)
  • Employment Actsection 44(4)(d) and (g)
  • Employment Actsection 47(5)
  • Employment Actsection 49(1)(c) and 49(4)
  • Regulation of Wages (Protective Security Services) Ordernot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d) and Article 48

Cases cited (12)

  • Alphonce Maghanga Mwaghanga V Operation 680 Ltd
    (2013) eKLR
  • Wycliffe Mwakha Murunga v Kenya Horticultural Exporters (1977) Ltd
    (2019) eKLR
  • Evans Zimbaso Indege & 8 Others V Africa Apparels (EPZ) Ltd
    (2022) eKLR
  • Thomas Sila Nzivo v Bamburi Cement Ltd
    (2014) eKLR
  • Kennedy Maina Mirera v Barclays Bank of Kenya Ltd
    (2018) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis v Oxford University (EA) Ltd
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards
  • Postal Corporation of Kenya v Andrew K. Tanui
    (2019) eKLR
  • Trinity Prime Investment Ltd v Lion of Kenya Insurance Co. Ltd
    (2015) eKLR
  • Coastal Bottlers Ltd v Kimathi Mithika
    (2018) eKLR
  • Coast Bus Services Ltd v Murunga & Others
    CA No. 192 of 1992
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance statement of claim filed 7th December 2017)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.