Momanyi v KK Security (Cause 152 of 2017) [2023] KEELRC 235 (KLR)
The bottom line
#Even when an employee skips work, a Kenyan employer must still follow fair disciplinary procedure before firing them or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant absented himself from duty without authority
Yes - the Claimant absented himself from October 27 to November 8, 2016 without authority or proof of medical attendance
The Claimant bore the duty to provide documentary evidence of hospital visits, which he did not furnish. He was contacted by SMS on November 7, 2016 as his whereabouts were unknown and he was not on sick off or leave. The court found it unclear when, if at all, he intended to return to his post.
Whether the Respondent had valid reasons for termination (substantive justification)
Yes - both grounds (failure to report the theft and absenteeism) were established on a balance of probabilities
The Claimant, though stationed at the gate, was required by the Operating Procedures to make physical checks of the entire location and patrol. He did not rebut the warning letter dated September 26, 2016. His arrest and later discharge by police were not conclusive evidence of non-culpability, given the differing standards of proof.
Whether procedural fairness under Section 41 was accorded
No - the Respondent failed to prove procedural fairness, rendering the termination unfair
There was no notice to show cause; the hearing invitation omitted the right to be accompanied; witness statements relied upon were not disclosed nor were their makers available for questioning; and no minutes of the concluding hearing were availed, leaving the court unable to ascertain how the termination decision was made.
Legal principles established
#- For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness
- Desertion or absconding duty does not deny an employee the right to procedural fairness in termination of employment
- An employer must accord the employee a fair opportunity to defend himself against allegations under Section 41 of the Employment Act, including disclosure of witness statements relied upon
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair
- 2.Equivalent of two (2) month's salary as compensation
- 3.Outstanding annual leave pay from February to November 10, 2016
- 4.No order as to costs or interest
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination of employment under the Employment Act, 2007
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.
- Lorna Chepng'eno v KCB Bank Kenya Limited[2026] KEELRC 2764 (KLR)2 Oct 2026applied
Cite this brief
#Cite this brief
Caselaw, "Momanyi v KK Security (Cause 152 of 2017) [2023] KEELRC 235 (KLR)", Case Analysis (2023). Memorandum of Claim filed January 30, 2017 (ELRC cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/235/eng@2023-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.