Wandika v Towfiq Kenya Limited (Appeal E119 of 2023) [2025] KEELRC 716 (KLR)
The bottom line
#Kenya's Employment Court ruled a security guard's summary dismissal unfair because his employer couldn't prove he was notified or heard before termination.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal under section 41 of the Employment Act
The dismissal was procedurally unfair because the Appellant was not proved to have been notified of the allegations and invited to a disciplinary hearing
Section 41 requires notification, hearing and consideration. The employer alleged service of a show cause letter by an unnamed messenger on an undisclosed date; the employer did not call the messenger despite the dispute over service. The court drew an adverse inference, found the notification ingredient unproved, and held that minutes alone could not establish a fair disciplinary process.
Substantive fairness under section 45(2) of the Employment Act
There was no valid and fair reason for the summary dismissal; the grounds were generalized and the absenteeism was explained by illness known to the supervisor
The grounds in the show cause and termination letters were generalized - no specifics of the rudeness, negligence or absenteeism were proved. The Appellant's unchallenged evidence that he was absent due to illness with the supervisor's knowledge meant dismissing him for absenteeism was unfair. The undated apology letter did not amount to an admission of infractions.
Entitlement to reliefs: compensation, notice pay and overtime
The Appellant was awarded six months' gross salary as compensation under section 49(1)(c), one month's notice pay under section 36, and overtime of KShs. 147,474
Section 49(1)(c) compensation is discretionary; the court considered the respondent's non-conformity with both procedural and substantive requirements and length of service in awarding six months' gross salary. Employment was terminable by 28 days' notice under section 35, which was not issued. The overtime claim remained unrebutted, and the burden was on the employer who kept the records under section 74.
Claim for underpayments under the Wage Orders
The claim for underpayments failed; the Trial Magistrate was right that the Appellant was not underpaid
The court considered the Regulations of Wages (General) (Amendment) Orders 2015 and 2018 and upheld the Trial Magistrate's conclusion that the wages paid did not fall below the statutory minimum. No compensation on this head was included in the substituted judgment.
Legal principles established
#- A first appellate court must re-evaluate the material before the trial court and reach its own independent findings
- Mere production of minutes of an alleged disciplinary hearing does not equate to proof of procedural fairness under section 41 of the Employment Act; all three ingredients (notification, hearing, consideration) must be shown
- Where service of a show cause letter is disputed, the employer should call the messenger who served it; failure to do so may attract an adverse inference
- Generalized allegations of misconduct do not constitute valid and fair reasons for summary dismissal; specifics are required
- Where the employer is enjoined by section 74 of the Employment Act to keep employment records, an employee's unrebutted pleaded claim on overtime need not be proved by attendance logs produced by the employee
Court orders
#- 1.A declaration that the summary dismissal against the Appellant was unfair
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act of six months' gross salary, KShs. 90,000
- 3.One month's salary in lieu of notice, KShs. 15,000
- 4.Overtime compensation of KShs. 147,474
- 5.The Respondent to issue a certificate of service to the Appellant within 30 days of the date of the Judgment
- 6.Interest on the awarded sum from the date of the Judgment till full payment
- 7.Costs of the suit to the Appellant
- On appeal from
- Magistrates' Court (Lower Court)
- Jurisdiction invoked
- First appellate jurisdiction over the Lower Court judgment (Employment Act, sections 41, 45, 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wandika v Towfiq Kenya Limited (Appeal E119 of 2023) [2025] KEELRC 716 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 27th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/716/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.