Kabusia v KK Security (Employment and Labour Relations Cause 709 of 2017) [2025] KEELRC 420 (KLR)
The bottom line
#A Kenyan court ruled a security guard's dismissal for 'desertion' was unlawful because the employer couldn't prove it or hold a hearing first.
What this practically means
#Executive summary
#Key legal issues
#Substantial fairness - validity of the reason for dismissal (desertion)
The reason of desertion from 22nd December 2015 was invalid; the respondent's own investigation report and continued payment of salary contradicted it.
Section 43(2) requires the employer to have genuinely believed the reason existed at termination. The respondent's own Karen office incharge emailed on 23rd December 2015 stating the claimant was unwell awaiting surgery and requesting he remain on payroll. Salary continued to be paid after the alleged desertion. No effort to contact the employee was demonstrated. The desertion reason therefore did not exist, rendering the termination unlawful.
Procedural fairness before summary dismissal
No procedural fairness was accorded; no disciplinary hearing was held before the summary dismissal.
Under section 41(2) of the Employment Act an employer must hear and consider representations before summary dismissal under section 44(3) or (4). RW1 admitted the claimant was not invited to a disciplinary hearing; only a post-dismissal appeal right was given. Since the hearing must precede dismissal, the absence of a prior hearing rendered the dismissal procedurally unfair.
Burden and standard of proof on the unpleaded terminal dues claim
The claim for Kshs. 328,615.50 terminal dues failed for want of pleading and proof; only proved unpaid salary was awarded.
Relying on sections 107 and 109 of the Evidence Act and the balance-of-probability standard, the court held a claim must be pleaded with precision to elicit a response. The claimant did not itemize the terminal dues (leave, unpaid salary, etc.). Only salary for March 2016 and 8 days of April 2016 was established, computed from the February 2016 payslip.
Entitlement to remedies for unlawful and unfair termination
Claimant awarded one month's notice pay and five months' gross salary as compensation under section 49.
Guided by section 49(4) factors: about two years of service, a prior misconduct warning, employer covering medical treatment and offering light duties, young employee with no evidence of difficulty securing comparable employment, and failure to mitigate. These justified notice pay and compensation equivalent of five months' gross salary rather than the maximum twelve months.
Legal principles established
#- The employer bears the burden of proving the reason for termination; where the reason did not genuinely exist at the time of termination, the termination is unfair.
- An employer alleging desertion/absconding must demonstrate efforts made to reach out to the employee before terminating on that ground.
- The disciplinary hearing contemplated under section 41(2) of the Employment Act must happen before dismissal, not thereafter.
- An employee under the NSSF is not entitled to service pay under section 35(6)(d) of the Employment Act.
Court orders
#- 1.Unpaid salary arrears awarded for the total sum of Kshs. 17,903/-
- 2.Notice pay of Kshs. 14,134
- 3.Compensation for unlawful and unfair termination equivalent of 5 months of last gross salary total sum of Kshs. 70,670/-
- 4.Costs and interest at court rates from the date of Judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (section 49 and 50 invoked for remedies)
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.
Cite this brief
#Cite this brief
Caselaw, "Kabusia v KK Security (Employment and Labour Relations Cause 709 of 2017) [2025] KEELRC 420 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/420/eng@2025-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.