Riley Falcon Security Services v Omollo (Appeal E037 of 2022) [2024] KEELRC 389 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination under Section 41 of the Employment Act
Termination was procedurally unfair because the Respondent was never invited to a hearing and the 48 hours to respond to the show cause letter was unreasonable.
The court found that although a show cause letter was issued and answered by way of an apology, nothing showed the Appellant invited the Respondent to a hearing. Relying on Hosea Akunga Ombwori and Mary Mutanu Mwendwa, the court held that notification and hearing of representations are mandatory under Section 41. The 48-hour window was also unreasonable, rendering the termination unfair on procedure.
Substantive justification for termination
The Respondent's admission that he slept at work constituted a valid, fair and justified reason for termination.
The Respondent admitted the charge through his apology letter, which doubled as his response to the show cause letter. The Appellant's code of conduct expressly required alertness at work, and the guarded premises were solely under his care. Relying on Pius Machafu Isindu, the court held the employer proved valid and justified grounds under Sections 43, 45 and 47(5).
Compensation for unfair termination
Two months' salary awarded as sufficient compensation given the reason for termination was valid.
Since the termination was unfair only on procedure and the reason was valid and justified, the court, guided by Kenya Ports Authority v Festus Kipkorir Kiprotich on statutory capping, deemed two months' salary sufficient compensation under Sections 49 and 50 of the Employment Act.
Limitation applicable to salary underpayment claim
Underpayment is not a continuing injury; the three-year limitation under Section 90 applies and the claim was within time.
The court agreed with the Respondent that underpayment is not a continuing wrong, rejecting the Appellant's one-year argument. It computed underpayment against the applicable minimum wage orders for 2017 and 2018, awarding Kshs. 19,124/-, upholding the trial court's award on this head.
Overtime claim
Dismissed for lack of evidence.
The Respondent contended he worked overtime but led no evidence to prove the claim; the award of overtime by the trial court was set aside entirely.
Salary in lieu of notice
Awarded as prayed; it was undisputed no termination notice was given or paid in lieu.
The court found it undisputed that the Respondent received no termination notice and was not paid in lieu, so the cross-appeal succeeded on this head and notice pay was awarded.
Legal principles established
#- A fair termination requires both fair procedure and substantive justification; where the reason is valid but procedure is unfair, termination is unfair on account of procedure only.
- An employer who issues a show cause letter and receives a response must still invite the employee to a hearing; failure to do so, and an unreasonably short time to respond, renders termination procedurally unfair.
- Salary underpayment is not a continuing injury, so the applicable limitation period is three years.
Court orders
#- 1.The finding of the Trial Court that the Respondent was lawfully terminated is set aside, and substituted therewith a finding of an unfair termination
- 2.The Respondent is awarded 2 months salary as compensation for the unfair termination at Kshs. 30,282/-
- 3.Salary in lieu of notice at Kshs. 15,141/-
- 4.The award on account of underpayment is upheld at Kshs. 19,124/-
- 5.The award of overtime payment is set aside entirely
- 6.The award of costs and interest is set aside
- 7.Each party will bear their own costs of the appeal and cross-appeal
- 8.Interest at courts rate until payment in full
- On appeal from
- Subordinate Court (Trial Court)
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the subordinate court in an employment claim
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.
- Riley Falcon Security Services v Ngisa (Appeal E051 of 2024) [2025] KEELRC 2934 (KLR)[2025] KEELRC 2934 (KLR)29 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Riley Falcon Security Services v Omollo (Appeal E037 of 2022) [2024] KEELRC 389 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/389/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.