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ELRCPartially AllowedCause No 2523 of 2016· [2023] KEELRC 144 (KLR)

Nyongesa v Hatari Security Guards Ltd (Cause 2523 of 2016) [2023] KEELRC 144 (KLR)

Employment and Labour Relations Court of Kenya
24 January 2023
2,759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security supervisor was unfairly dismissed because his employer skipped a proper disciplinary hearing, despite having valid grounds.

What this practically means

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Executive summary

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The claimant, a supervisor employed by the respondent security company since May 2009 and in charge of the Nairobi Central Business District, sued for unlawful and unfair termination following his dismissal on October 12, 2015. The dismissal stemmed from an accident at the City Square Post Office on the night of September 26, 2015 caused by an intoxicated guard; the claimant was accused of failing to notice the guard's intoxication, having no checklist, failing to visit the site when informed of the accident, and leaving at 4.00 am. He sought compensation, one month's notice pay, accrued leave, general damages, costs and interest. The respondent denied unfair termination, asserting justifiable grounds. Applying sections 35, 41, 43, 44, 45 and 47(5) of the Employment Act, the court (Gakeri J) held that termination must be both substantively justifiable and procedurally fair. On substance, the claimant's evidence was found contradictory and unreliable, and the respondent proved a valid reason for termination on a balance of probability. On procedure, however, RWI admitted there was no evidence of a disciplinary hearing, no invitation and no minutes, so the termination was procedurally unfair. The court awarded one month's salary in lieu of notice, the equivalent of three months' salary as compensation under section 49(1)(c) (factoring in the claimant's length of service, his substantial contribution to the termination and his clean record), a certificate of service, costs and interest. Accrued leave was disallowed for want of particulars, and general damages were dismissed for want of evidence.

Key legal issues

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01

Whether the respondent had a valid reason to terminate the claimant's employment

Holding

Yes - the respondent proved valid reason (negligence as supervisor) on a balance of probability

Reasoning

The court found the claimant's evidence contradictory on the intoxicated guard, his checklist and his whereabouts. He failed to explain why he did not visit the assignment area after being notified of the accident, did not report in the occurrence book, and gave unconvincing evidence about checklist supply. Either he attended work without his tool of trade and acted casually or did not report at all.

p. 5
02

Whether the termination was procedurally fair under section 41

Holding

No - the respondent failed to prove procedural fairness

Reasoning

RWI admitted on cross-examination he had no evidence the claimant was taken through a disciplinary hearing. There was no invitation to a disciplinary hearing and no minutes of any proceedings. Without these, the respondent failed on a balance of probabilities to demonstrate procedural fairness, rendering the termination unfair for want of procedural propriety.

p. 6
03

Quantum of relief

Holding

One month's notice pay plus three months' salary as compensation under section 49(1)(c), accounting for the claimant's contribution to the termination and length of service

Reasoning

The court considered the length of service (about 6 years 4 months), the claimant's substantial contribution to the termination, and his clean record during service, and concluded the equivalent of three months' salary was fair compensation.

p. 6

Legal principles established

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  • A fair termination must be both substantively justifiable and procedurally fair
  • Section 41 of the Employment Act imposes mandatory procedural requirements including a fair hearing before termination
  • Reasons for termination are those the employer genuinely believed to exist at the time of termination (section 43(2))
  • The employer bears the burden of proving both valid reason and fair procedure under section 45(2)

Court orders

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  1. 1.One month's salary in lieu of notice
  2. 2.Equivalent of three (3) months salary as compensation for unfair termination
  3. 3.Certificate of service
  4. 4.Costs of this suit
  5. 5.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 43(2)
  • Employment Act, 2007section 44(4)(c)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 35
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49(1)(c)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (9)

  • Richard Nyonga Aluvale v National Environment Management Authority & another
    (2018) eKLR
  • Dickson Otieno v University of Nairobi
    (2015) eKLR
  • Shankar Saklani case
    (2012) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Naima Khamis v Oxford University Press EA Ltd
    (2017) eKLR
  • CMC Aviation Ltd V Mohammed Noor
    (2015) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
  • Loice Otieno v Kenya Commercial Bank Ltd
    (2013) eKLR
  • Postal Corporation of Kenya v Andrew K Tanui
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment claim for unfair termination)

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, "Nyongesa v Hatari Security Guards Ltd (Cause 2523 of 2016) [2023] KEELRC 144 (KLR)", Case Analysis (2023). Cause No 2523 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/144/eng@2023-01-24

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