Kaberech v Xfor Security Solutions (Kenya) Limited (Cause 1776 of 2017) [2023] KEELRC 155 (KLR)
The bottom line
#A Kenyan court ruled a security guard's dismissal unfair because his employer offered no evidence proving the reason or following a fair process.
What this practically means
#Executive summary
#Key legal issues
#Manner of separation - dismissal or desertion
The Claimant's account was preferred; the Respondent's pleadings and evidence were sketchy and internally contradictory, so the court held the employment was terminated by the Respondent.
The Respondent asserted wilful default in returning to work but did not explain when or in what circumstances, or when the Claimant was last at work. Its amended statement of response contradicted itself, acknowledging a dismissal under 'submissions' while the preamble suggested desertion. The court declined to accept the Respondent's version.
Procedural fairness
The termination was procedurally unfair; the Respondent led no evidence to demonstrate fairness as required under section 45(2)(c).
Section 41 prescribes a mandatory procedure: notification of the grounds, an opportunity to make representations, and consideration of those representations. The Respondent alleged the dismissal was fair but placed no evidence before the court, so the legal burden under section 45(2)(c) was not discharged.
Substantive fairness
The Respondent failed to prove the reason for termination to the requisite standard; the desertion evidence was too sketchy and insufficient.
Section 43(1) obliges the employer to prove the reason for termination, and section 45 requires proof that the termination was anchored on a valid and fair reason. The evidence on alleged desertion was so weak that no reasonable conclusion of proof could be drawn; the termination was therefore substantively unfair.
Reliefs
Notice pay of Kshs 13,400, untaken leave for three years of Kshs 28,140, and seven months' gross salary (Kshs 93,800) under section 49(1)(c) were awarded; the overtime claim was refused.
The employment was terminable by notice under section 35, which was not given. Leave is a statutory right and the Respondent produced no evidence of leave taken or compensated. The compensatory award was discretionary, considering the unfairness, the Respondent's deviation from fairness, the Claimant's non-contribution and length of service. The pay slips showed overtime had been paid.
Legal principles established
#- Substantive fairness relates to the decision itself while procedural fairness relates to the process leading to the decision; absence of either renders a termination unfair.
- Procedural fairness under section 41 comprises notification, hearing and consideration of representations, and the procedure is mandatory.
- The legal burden to prove both the reason for termination and procedural fairness lies on the employer and is discharged only by evidence.
Court orders
#- 1.Declaration that the termination of the Claimant's employment was both procedurally and substantively unfair
- 2.One month's salary in lieu of notice, Kshs 13,400
- 3.Compensation for untaken leave days, Kshs 28,140
- 4.Compensation pursuant to section 49(1)(c) of the Employment Act, 7 months' gross salary, Kshs 93,800
- 5.Costs of the suit to the Claimant
- 6.Interest at court rates on the sums awarded from the date of judgment till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaberech v Xfor Security Solutions (Kenya) Limited (Cause 1776 of 2017) [2023] KEELRC 155 (KLR)", Case Analysis (2023). Cause no. 1998 of 2011 (as referenced); memorandum of claim dated 1st September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/155/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.