SGA Security Solutions Limited v Mwale (Appeal E127 of 2023) [2024] KEELRC 1480 (KLR)
The bottom line
#Kenya's Employment Court ruled an employer fairly dismissed a security guard caught sleeping during a theft, overturning earlier awards of compensation and other dues.
What this practically means
#Executive summary
#Key legal issues
#Adequacy of the disciplinary process under Section 41 of the Employment Act
The process complied with Section 41; the shop stewards were properly present and the respondent did not protest or request another employee of his choice
The court held that Section 41 requires notice to attend a disciplinary hearing and the presence of a union representative or a person chosen by the employee. The respondent was suspended on 24 August 2021 with notice of a disciplinary hearing, and on 1 September 2021 appeared before shop stewards Geoffrey Nyamweya and Bernard Ondieki. He did not object to their presence or ask for more time to call a person of his choice, and the disciplinary record was unchallenged.
Justification of summary dismissal for gross misconduct
Sleeping on duty during a theft constitutes a fundamental breach justifying summary dismissal under Section 44(3)
The respondent admitted dozing off while chairs were stolen from the premises he was guarding, and offered to be surcharged. Disciplinary proceedings apply the balance of probabilities, not the criminal standard of proof. Given the admission, the termination was justified and the trial court's finding of unfair termination was set aside, together with the awards of compensation and notice pay.
House allowance claim
The wage of Kshs. 18,000 was consolidated and adequately compensated the respondent; no separate house allowance was due
The court computed the due wage for a night guard in Mombasa County as at 1 September 2021 at Kshs. 15,141.95, with a 15% house allowance of Kshs. 2,271.15, totalling Kshs. 17,412.15. Since the respondent earned Kshs. 18,000 per month, he was well compensated and no separate house allowance award was warranted.
Payment in lieu of untaken leave
The award of untaken leave days was unjustified because leave records showed leave had been taken; payment would be double payment
The appellant filed leave request forms approved on 4 January 2021, 27 June 2020 and 15 May 2020. As the employer is the custodian of work records, the submitted leave sheets demonstrated that allocating payment instead of leave would amount to double payment, and the trial court's award was thereby undermined.
Legal principles established
#- A security guard found sleeping on duty during which theft occurs commits a fundamental breach of contract justifying summary dismissal under Section 44(3) of the Employment Act
- Disciplinary proceedings are civil in nature and are determined on a balance of probabilities, not the criminal standard
- A shop steward lawfully represents an employee at a disciplinary hearing under Section 41(1) of the Employment Act unless the employee seeks a specific employee of his choice
- Costs in employment claims are discretionary and should not be awarded as a matter of course
Court orders
#- 1.Appeal allowed
- 2.Judgment in Mombasa CMELCR No. E768 of 2021 set aside in its entirety
- 3.Each party bears its own costs
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- CMELR No. E768 of 2021
- Jurisdiction invoked
- First appeal from the magistrates' court in an employment and labour relations matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SGA Security Solutions Limited v Mwale (Appeal E127 of 2023) [2024] KEELRC 1480 (KLR)", Case Analysis (2024). Appeal No E127 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1480/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.