Chemengich v Radar Limited (Cause 36 of 2017) [2025] KEELRC 638 (KLR)
The bottom line
#A Kenyan court ruled that dismissing a security guard for absconding was unfair because the employer never investigated or heard him before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively unfair (whether the Claimant absconded duty)
The reason for dismissal did not exist; the Claimant was off duty with his supervisor's permission due to illness, a lawful cause under section 30
The court found the Claimant's account consistent and corroborated by medical evidence and the nurse witness. The Respondent failed to call the supervisor who allegedly granted permission, attracting an adverse inference. The Respondent's evidence that it learned of the absence from its client was too general and unconvincing. Section 43 placed the burden of proving the reason on the employer, which it failed to discharge.
Whether the summary dismissal was procedurally unfair under section 41
Procedurally unfair; the Respondent issued no show-cause notice, gave no hearing, and made no demonstrated efforts to contact the Claimant
The Respondent's witness admitted no show-cause notice was given and that the Claimant was dismissed in absentia, with no documents evidencing efforts to trace him. Citing Galgalo Jarso Jillo, Ayub Kombe Ziro, Haji v Syed Hassan Zaidi and Standard Group Limited v Jenny Luesby, the court held that even gross misconduct does not exempt an employer from the mandatory hearing requirements of section 41. When the Claimant resurfaced on 29th October 2015, the Respondent could have initiated the process but did not.
Entitlement to remedies
Claimant awarded declaration, 8 months' compensation, one month's notice pay, service pay, leave pay for 21 days, October 2015 salary, return of certificates, and interest
Having found the dismissal unlawful and unfair, the court exercised its discretion under section 49para 1[c] considering the blatant failure of procedural fairness, the unjustified rush to dismiss, and length of service, awarding eight months' gross salary. Notice pay followed from absence of statutory notice under section 35; leave was a statutory right under section 28; October salary was due since termination occurred on 29th October 2015.
Legal principles established
#- It is not enough for an employer to plead desertion from duty; the employer must provide sufficient evidence that the reason for dismissal existed, and must demonstrate efforts to reach the employee for an explanation before terminating for absenteeism
- There is no disciplinary process exempt from the mandatory requirements of section 41 of the Employment Act
- Absence from duty due to illness notified to the employer is absence with lawful cause under section 30 of the Employment Act and cannot ground summary dismissal
Court orders
#- 1.A declaration that the summary dismissal against the Claimant was unlawful and unfair
- 2.Compensation pursuant to section 49[1][c] of the Employment Act, KShs. 114,400
- 3.One month's salary in lieu of notice, KShs. 14,300
- 4.Service pay KShs. 14,300
- 5.Compensation for earned but untaken leave days - 21/30 x 14,300 x 2 = KShs. 20,020
- 6.Salary for October 2015, KShs. 14,300
- 7.The Respondent to release the academic certificates, if still holding them, to the Claimant within 30 days of the Judgment
- 8.Interest on the awarded sums at court rates from the date of Judgment till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 30, 35, 40, 41, 43, 44, 45, 49) over a claim for unfair summary dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chemengich v Radar Limited (Cause 36 of 2017) [2025] KEELRC 638 (KLR)", Case Analysis (2025). Statement of Claim dated 19th December 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/638/eng@2025-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.