Nyongesa v Hatari Security Guards Ltd (Cause 2523 of 2016) [2023] KEELRC 144 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the respondent had a valid reason to terminate the claimant's employment
Yes - the respondent proved valid reason (negligence as supervisor) on a balance of probability
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.
Whether the termination was procedurally fair under section 41
No - the respondent failed to prove procedural fairness
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.
Quantum of relief
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
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.
Legal principles established
#- 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
#- 1.One month's salary in lieu of notice
- 2.Equivalent of three (3) months salary as compensation for unfair termination
- 3.Certificate of service
- 4.Costs of this suit
- 5.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.