Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 2940 (KLR)

Emira v Securex Agencies (K) Ltd (Cause 1596 of 2018) [2023] KEELRC 2940 (KLR)

Employment and Labour Relations Court
17 November 2023
BOByram Ongaya
1,878 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer that abandons a disciplinary hearing cannot later claim an employee deserted, and must pay for unfair termination.

What this practically means

#

Executive summary

#
The claimant, a security guard employed by the respondent, sued for terminal dues, salary in lieu of notice, general damages for mental anguish, reinstatement, costs and interest following the termination of his employment effective 02.07.2015. His case arose from the vandalism of a transformer at KPLC Ruaraka grounds while he was on duty, his arrest and criminal trial (ending in acquittal under section 210 of the Criminal Procedure Code), and the respondent's failure to conclude a disciplinary process after repeated adjournments. The respondent maintained that the claimant was issued a notice to show cause on 29.06.2015 for a hearing on 02.07.2015, failed to attend, deserted duty, and was lawfully dismissed, resurfacing only in January 2016 to collect terminal dues. The court found the claimant's unchallenged testimony more probable: the respondent frustrated the disciplinary process, and its late assertion of desertion undermined its account. The termination was held unfair in substance and procedure contrary to sections 41 and 43 of the Employment Act. The court awarded Kshs.22,000 in lieu of notice and eight months' salary (Kshs.176,000) as compensation, but declined service pay (no NSSF membership shown), general damages, withheld salaries (no prayer), and deemed reinstatement abandoned and statute-barred. Judgment for Kshs.198,000 with costs to the claimant, delivered on 17 November 2023 by Byram Ongaya, Principal Judge.

Key legal issues

#
01

Fairness of the termination

Holding

The termination was unfair in substance and procedure because the disciplinary process aborted at the respondent's instance and no valid reason for termination was established.

Reasoning

The claimant's testimony that hearings were repeatedly adjourned and that he was pressed to resign was unchallenged. The respondent failed to show the claimant missed the 02.07.2015 hearing as envisaged under section 43 of the Employment Act, did not revive the process in January 2016 when the claimant resurfaced, and only issued a desertion letter years later. The respondent's account was therefore not probable on a balance of probability.

p. 3
02

Remedies for unfair termination

Holding

One month's salary in lieu of notice and eight months' gross salary as compensation for unfair termination were awarded.

Reasoning

The court found the dismissal was without notice and considered section 12 factors: the respondent's failure to conclude the disciplinary process, unjustified adjournments, the period served, and the claimant's otherwise clean record of service, resulting in an award of eight months' salaries of Kshs.176,000 plus Kshs.22,000 in lieu of notice.

p. 4

Legal principles established

#
  • It is for the employer to establish that an employee failed to attend a disciplinary hearing as envisaged in section 43 of the Employment Act, and where the employer frustrates the disciplinary process, it cannot establish a valid reason for termination.
  • A termination in breach of the fair procedure required by section 41 of the Employment Act is unfair in substance and procedure.

Court orders

#
  1. 1.Payment of Kshs.198,000.00 by 31.12.2023 failing interest to be payable thereon at Court rates from the date of judgment till full payment
  2. 2.The respondent to pay costs of the suit

Authorities

#

Legislation

  • Penal Codesections 268, 275
  • Criminal Procedure Codesection 210
  • Employment Actsections 41, 43
  • Employment and Labour Relations Court Act (implied by reference to factors)section 12
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45) and section 12 of the Employment and Labour Relations Court Act considered on remedies

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Emira v Securex Agencies (K) Ltd (Cause 1596 of 2018) [2023] KEELRC 2940 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2940/eng@2023-11-17

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