Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 1871 of 2017· [2023] KEELRC 2882 (KLR)

Emoit v Radar Limited (Cause 1871 of 2017) [2023] KEELRC 2882 (KLR)

Employment and Labour Relations Court
10 November 2023
2,830 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled a security guard's theft-related dismissal unfair because his employer had no proof of theft and skipped proper disciplinary procedure.

What this practically means

#

Executive summary

#
The Claimant, a security guard, sued the Respondent security company alleging that on 19th June 2017 (his testimony and dismissal letter say 19th June 2016) he was summarily dismissed after being told his services were no longer required. He sought a declaration that the dismissal was unfair and unlawful, terminal dues and compensatory damages of Kshs 554,319.00, interest and costs. The Respondent defended the suit, stating the Claimant was summarily dismissed for stealing iron sheets at his assignment, that due process was followed, and that all dues were paid. The Respondent called its Human Resource Manager as RW1; the Respondent did not file written submissions as they went missing from the court record. The Court framed two issues: whether the termination was unfair and unlawful, and entitlement to reliefs. Applying the two-limb test of substantive justification and procedural fairness, the Court found the Respondent failed to prove the theft allegation - the Occurrence Book was not exhibited, no evidence confirmed the alleged admission, and no nexus was drawn between the Claimant and the theft. Procedurally, RW1 admitted no notice to show cause was issued and no disciplinary record existed. The termination was therefore both substantively and procedurally unfair under Sections 43, 45 and 41 of the Employment Act. The Claimant was awarded one month's salary in lieu of notice (Kshs 16,683.00), six months' gross salary as compensatory damages (Kshs 100,098.00) and unpaid leave (Kshs 17,517.00), totaling Kshs 134,298.00 with interest. Claims for house allowance, service pay and unpaid public holidays were declined. The Respondent was directed to issue a Certificate of Service within 30 days, and the Claimant was awarded costs.

Key legal issues

#
01

Substantive justification for summary dismissal on grounds of stealing

Holding

Respondent failed to prove the reason was valid and fair; no nexus between the alleged theft and the Claimant was established

Reasoning

The Occurrence Book recording the theft incident was not exhibited, there was no evidence confirming the Claimant's alleged admission, and RW1's testimony that the Claimant's mistake was letting a stranger in was not the stated reason for dismissal. The employer bore the burden under Sections 43 and 45(2)(a) and (b) of the Employment Act and failed to discharge it.

p. 4
02

Procedural fairness under Sections 41 and 45(2)(c) of the Employment Act

Holding

Dismissal was procedurally unfair; no evidence of notice to show cause, disciplinary hearing record, or notification of the right to be accompanied

Reasoning

RW1 admitted during cross-examination that no notice to show cause was issued. There was no disciplinary record to confirm a hearing took place, and no evidence the Claimant was notified of his right to call a union representative or colleague. The employer, bearing the burden of proving fair process, failed to do so.

p. 5
03

Entitlement to reliefs

Holding

Claimant awarded one month's salary in lieu of notice, six months' gross salary as compensatory damages, and unpaid leave limited to 18 months; house allowance, service pay and public holiday claims declined

Reasoning

Having found the termination unfair and unlawful, compensation under Section 49(1) was warranted, considering the length of employment and circumstances of dismissal. Leave pay followed the employer's failure to exhibit leave records. House allowance was contradicted by the payslip, service pay was barred by NSSF membership, and public holiday pay was unsupported given overtime payments.

p. 5

Legal principles established

#
  • An employer must prove both substantive justification and procedural fairness for a termination to be fair
  • Failure to prove the reasons for termination renders it unfair under Sections 43 and 45 of the Employment Act
  • Where an employer fails to exhibit leave records, the employee is entitled to payment in lieu of leave, limited to 18 months under Section 28(4)

Court orders

#
  1. 1.One month's salary in lieu of notice of Kshs 16,683.00
  2. 2.Compensatory damages of Kshs 100,098.00 being equivalent to six months of gross salary
  3. 3.Unpaid leave of Kshs 17,517.00
  4. 4.Total award of Kshs 134,298.00 with interest at court rates from the date of Judgment until payment in full
  5. 5.Respondent to release the Claimant's Certificate of Service within 30 days
  6. 6.Claimant to have the costs of the suit

Authorities

#

Legislation

  • Employment ActSections 41, 43(1), 45(2)(a), 45(2)(b), 45(2)(c), 49(1), 74(1)(f), 35(6), 28(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d), 48

Cases cited (4)

  • Joseph Sitati Nato vs Kenya Ports Authority
    (2010) eKLR
  • Donald Odeke vs Fidelity Security Limited
    (2012) eKLR
  • Walter Ogal Anuro vs Teachers Service Commission
    [2013] eKLR
  • Chairman Board of Directors (National Water Conservation and Pipeline Corporation) vs Meshack M. Saboke & 2 others
    (2019) eKLR
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, "Emoit v Radar Limited (Cause 1871 of 2017) [2023] KEELRC 2882 (KLR)", Case Analysis (2023). Cause No 1871 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2882/eng@2023-11-10

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