Emoit v Radar Limited (Cause 1871 of 2017) [2023] KEELRC 2882 (KLR)
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
#Key legal issues
#Substantive justification for summary dismissal on grounds of stealing
Respondent failed to prove the reason was valid and fair; no nexus between the alleged theft and the Claimant was established
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.
Procedural fairness under Sections 41 and 45(2)(c) of the Employment Act
Dismissal was procedurally unfair; no evidence of notice to show cause, disciplinary hearing record, or notification of the right to be accompanied
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.
Entitlement to reliefs
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
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.
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.One month's salary in lieu of notice of Kshs 16,683.00
- 2.Compensatory damages of Kshs 100,098.00 being equivalent to six months of gross salary
- 3.Unpaid leave of Kshs 17,517.00
- 4.Total award of Kshs 134,298.00 with interest at court rates from the date of Judgment until payment in full
- 5.Respondent to release the Claimant's Certificate of Service within 30 days
- 6.Claimant to have the costs of the suit
- 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.