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ELRCPartially AllowedAppeal No E036 of 2022· [2024] KEELRC 392 (KLR)

Riley Falcon Security Services v Kamuga (Appeal E036 of 2022) [2024] KEELRC 392 (KLR)

Employment and Labour Relations Court of Kenya
29 February 2024
CBChristine N. Baari
2,755 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

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A Kenyan court ruled a security guard's dismissal unfair because his employer gave only 48 hours to respond and denied him representation at the hearing.

What this practically means

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Executive summary

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This is a first appeal and cross-appeal from a subordinate court judgment delivered on 10th June 2022, which had found in favour of the Respondent employee, awarding salary for November 2020, salary underpayment, overtime, house allowance, gratuity, costs and interest, and issuing an order for a certificate of service. The Appellant employer appealed against the awards, while the Respondent cross-appealed against the trial court's finding that both the reason and procedure for termination were fair. The court, as a first appellate court, reappraised the evidence. It held that the termination was procedurally unfair: the Respondent was given only 48 hours to respond to the show cause letter and was not allowed or advised to appear at the disciplinary hearing with a representative, contrary to Section 41 of the Employment Act. On substance, the employer failed to discharge its burden under Section 43 as it did not call the Respondent's supervisor to rebut the claim that the leave extension was approved. The cross-appeal thus succeeded and the finding of lawful termination was set aside and substituted with a finding of unfair termination, with compensation of two months' salary (Kshs. 30,282/-) given the Respondent's prior warning. The awards for November 2020 salary (Kshs. 15,141/-) and underpayment (Kshs. 23,294/-, limited to November 2017 and 2018 by the three-year limitation in Section 90) were upheld, while the awards for overtime, house allowance and gratuity were set aside entirely, the pay slips showing such payments and no contractual or CBA basis for gratuity being proved. Costs and interest awarded by the trial court were set aside; parties were to bear their own costs, with the Appellant bearing half the costs of the appeal and cross-appeal, and interest on the awards at court rate until payment in full.

Key legal issues

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01

Procedural fairness of the termination

Holding

The termination was procedurally unfair because the Respondent was given only 48 hours to respond to the show cause letter and was not allowed or advised to appear at the hearing with a representative

Reasoning

Section 41 provides the irreducible minimum for a fair termination. The Respondent's assertion that he was not allowed or advised to appear at the hearing in the company of a representative was not rebutted. Further, 48 hours was not reasonable time to respond to a show cause letter. These two defects rendered the procedure unlawful and the termination unfair.

p. 4
02

Substantive justification for the termination

Holding

The Appellant failed to prove a valid and fair reason for termination as it did not call the Respondent's supervisor to rebut the claim that the supervisor approved the leave extension

Reasoning

The Respondent admitted absconding duty but asserted he notified his supervisor and the absence was approved. This assertion was not rebutted. The supervisor, an employee of the Appellant, was not called as a witness. The employer therefore did not discharge its burden under Section 43 of the Employment Act to prove the reasons it genuinely believed existed.

p. 5
03

Compensation for unfair termination

Holding

Two months' salary was awarded as compensation, taking into account the Respondent's prior warning for misconduct

Reasoning

Having found unfair termination, the Respondent was entitled to compensation under Sections 49 and 50 of the Employment Act. Because he had a previous disciplinary record culminating in a warning letter, and thus no clean record of service, the court deemed two months' salary sufficient compensation.

p. 5
04

Limitation of underpayment claims

Holding

Only underpayment claims from November 2017 and 2018 were within the three-year limitation period under Section 90

Reasoning

The suit was lodged in November 2020 and Section 90 of the Employment Act sets a three-year limitation period. Claims for underpayment prior to November 2017 were therefore statute barred and only the November 2017 and 2018 claims survived.

p. 6

Legal principles established

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  • An employer must accord an employee a reasonable time to respond to a show cause letter and the right to be accompanied by a representative at the disciplinary hearing under Section 41 of the Employment Act
  • The burden of justifying the grounds for termination rests with the employer under Section 43 of the Employment Act
  • Gratuity must be proved as a contractual term or CBA provision; it is not automatic
  • The limitation period for employment claims under Section 90 of the Employment Act is three years

Court orders

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  1. 1.The finding of the Trial Court that the Respondent was lawfully terminated is set aside and substituted with a finding of unfair termination
  2. 2.The Respondent is awarded 2 months' salary as compensation for the unfair termination at Kshs. 30,282/-
  3. 3.The award of unpaid salary for November, 2020 is upheld at Kshs. 15,141/-
  4. 4.The award of underpayment is partly upheld at Kshs. 23,294/-
  5. 5.The award of overtime payment, house allowance and gratuity is set aside in their entirety
  6. 6.Costs and interest awarded by the Trial Court are set aside and parties shall bear their own costs
  7. 7.The Appellant will bear half the costs of the appeal and cross-appeal as consolidated
  8. 8.Interest on the awards made herein at Court rate until payment in full

Authorities

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Legislation

  • Employment ActSection 90
  • Employment Act, 2007Section 35(6)
  • Employment ActSection 41
  • Employment ActSections 43, 45 and 47(5)
  • Employment ActSections 49 and 50
  • Regulation of Wages (Protective Security Services) OrderRegulation 17(2)

Cases cited (12)

  • Thonias Sila Nzivo vs Bamburi Cement Ltd
    (2014) eKLR
  • G4S Security Services (K) Limited Versus Joseph Kamau & 46 Others
    [2018] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Charles Ogola & 2 others v Mansion Hart Kenya Limited
    [2019] eKLR
  • Ebrahim Ochieng Othuon & 2 Others v Chemelil Sugar Co. Ltd
    [2014] eKLR
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Peters v Sunday Post Ltd
    [1985] EA 424
  • Walter Ogal Anuro v. Teachers Service Commission
    (2013] EKLR
  • Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another
    Nyeri Civil Appeal No.97 of 2016
  • John Karanja Mbogo v Leah Wangui t/a Gilgil Distributors Limited
    [2020] eKLR
On appeal from
Subordinate Court (Trial Court - Magistrates' Court)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over appeals from the subordinate court in employment and labour matters

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Riley Falcon Security Services v Kamuga (Appeal E036 of 2022) [2024] KEELRC 392 (KLR)", Case Analysis (2024). Appeal No E036 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/392/eng@2024-02-29

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