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ELRCPartially AllowedELRC Appeal No. E013 of 2023 (consolidated with Appeal No. E024 of 2023)· [2024] KEELRC 1944 (KLR)

Winstar Security Guards Limited v Wanyonyi (Employment and Labour Relations Appeal E013 & E024 of 2023 (Consolidated)) [2024] KEELRC 1944 (KLR)

Employment and Labour Relations Court
25 July 2024
HWHellen Wasilwa
3,049 words in judgment
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The bottom line

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A Kenyan security firm must pay a guard for unfair dismissal because it couldn't prove he absconded or followed fair procedures.

What this practically means

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Executive summary

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This judgment disposes of two consolidated first appeals (E013 of 2023 and E024 of 2023) by Winster Security Guards Limited against decisions of the Nakuru Chief Magistrate's Court in CMELRC Cause No. 67 of 2019. The respondent, a night guard employed for barely six months, was summarily dismissed after items went missing at a construction site he was guarding. The trial court found the termination unfair and awarded notice pay, 15 days' salary, underpayment and overtime; it later, on review, added compensation under section 49 of the Employment Act. The appellant argued the respondent absconded after being asked to produce his original KCSE certificate, that the certificate was forged, and that the review was improper because an appeal had been filed. Wasilwa J, re-evaluating the evidence as a first appellate court, upheld the finding of unfair termination: the employer issued no dismissal letter and did not demonstrate efforts to trace the employee for a disciplinary hearing, and the certificate issue was neither investigated nor the stated ground of dismissal. The court held the review was competent since it was filed on 31/5/2023 before the memorandum of appeal on 5/6/2023 and before the appeal was determined. However, the court found the reviewed award irregular because it was a blanket figure without stating the number of months under section 49; it substituted compensation of six months' salary, Kshs. 78,000/=, leaving the rest of the judgment undisturbed. The appeal therefore partially succeeded, with costs of the appeal and the lower court awarded to the respondent.

Key legal issues

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01

Fairness of termination

Holding

The termination was unfair and unjustified; the appeal against that finding fails

Reasoning

The Appellant did not issue a dismissal letter nor demonstrate measures to trace the Respondent and subject him to a disciplinary process after the alleged absconding. The fake certificate issue was not investigated by police and was not the stated reason for dismissal, so it was immaterial. The court re-evaluated the evidence afresh as a first appellate court and arrived at the same finding as the trial court.

p. 6
02

Review pending appeal

Holding

The trial court properly entertained the review application since it was filed before the memorandum of appeal and before the appeal was determined

Reasoning

Order 45 rule 1 of the Civil Procedure Rules permits review by the court that passed the decree. The review application was filed on 31/5/2023 whereas the memorandum of appeal was filed on 5/6/2023; the appeal had not been allowed. There was thus no bar to the trial court exercising its review jurisdiction.

p. 6
03

Quantum of compensation under section 49 of the Employment Act

Holding

The trial court's blanket award on review was irregular; compensation is varied to 6 months' salary (Kshs. 78,000/=) given the Respondent's barely 6 months of service

Reasoning

Section 49 of the Employment Act requires compensation to run between 1 and 12 months' salary, with the number of months stated. The trial court awarded a blanket amount without specifying months. Considering the short period of employment, the appellate court substituted an award of 6 months' salary at Kshs. 13,000 per month.

p. 6

Legal principles established

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  • A first appellate court must re-evaluate the evidence on record afresh and reach its own findings
  • Where an employer alleges an employee absconded, the employer must demonstrate efforts made to reach the employee and ascertain the reasons for absence
  • A court retains power of review notwithstanding the filing of an appeal, so long as the appeal has not been determined

Court orders

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  1. 1.The finding that the Respondent's termination was unfair is upheld
  2. 2.Compensation for unfair termination set at 6 months' salary, i.e. Kshs. 78,000/=, in place of the amount awarded on review
  3. 3.The rest of the trial court's judgment (notice pay, 15 days' salary, underpayment, overtime) remains undisturbed
  4. 4.The Appellant to pay costs of this appeal and of the lower court
On appeal from
Nakuru Chief Magistrate's Court (CMELRC Cause No. 67 of 2019)
CMELRC 67 of 2019
Jurisdiction invoked
First appeal from the subordinate court under the Employment and Labour Relations Court's appellate jurisdiction

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, "Winstar Security Guards Limited v Wanyonyi (Employment and Labour Relations Appeal E013 & E024 of 2023 (Consolidated)) [2024] KEELRC 1944 (KLR)", Case Analysis (2024). ELRC Appeal No. E013 of 2023 (consolidated with Appeal No. E024 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1944/eng@2024-07-25

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