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ELRCPartially AllowedELRC No. E10 of 2023 (appeal from Winam SPM ELRC No. E10 of 2023)· [2025] KEELRC 958 (KLR)

G4S Kenya Limited v Busuru (Appeal E048 of 2024) [2025] KEELRC 958 (KLR)

Employment and Labour Relations Court
27 March 2025
4,592 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court cut a security guard's unfair dismissal award because his employer's unsigned disciplinary records made the process unfair, but the dismissal itself was justified.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against the judgment of Hon. Robert M. Oanda, SPM at Winam, delivered on 27th August 2024, which had awarded the respondent (a security guard summarily dismissed by G4S after the theft of items at an AEE Power site) a declaration, one month's salary in lieu of notice, 12 months' compensation, and gratuity for 28 years of service, with interest and costs. The respondent had been acquitted of stealing by servant in a criminal trial. Allow the appeal in part: the court, re-evaluating the evidence as a first appeal, found that although the respondent's dismissal was substantively justified - he admitted failing to patrol the site and falsely confirming to the supervisor and alarm team that all was well, constituting negligence and dishonesty under Section 44(4)(c) of the Employment Act - the procedure adopted was unfair because the disciplinary minutes and investigation report were unsigned and lacked probative value, leaving the employer unable to verify compliance with the mandatory requirements of Section 41. The court also held that the trial magistrate erred in treating the criminal acquittal as bearing on the disciplinary process, the two being independent. On reliefs, the court reduced compensation from 12 months to 3 months' gross salary (Kshs.77,857.05), set aside the award of one month's salary in lieu of notice under Section 44(1), and set aside the gratuity award for lack of any contractual or CBA basis, upholding the other awards. Each party was ordered to bear its own costs of the appeal. Judgment delivered virtually at Kisumu on 27th March 2025 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Valid and fair reason for summary dismissal

Holding

The appellant had a substantive justification; the respondent's failure to patrol and false confirmations that all was well amounted to negligence and dishonesty under Section 44(4)(c)

Reasoning

The respondent admitted he relied on the day guard's assurance, did not patrol the site, and falsely confirmed to the supervisor and alarm team that all was well. The court found this to be laxity, lack of care and outright negligence, and also dishonesty, justifying summary dismissal under Section 44(4)(c) of the Employment Act, notwithstanding the criminal acquittal.

p. 5
02

Procedural fairness of the dismissal

Holding

The procedure fell below the fair threshold because the minutes and investigation report were unsigned and could not be relied upon; the employer lacked verifiable evidence of compliance with Section 41

Reasoning

The disciplinary minutes compiled by Mr. Stephen Owuor were unsigned and the witness could not recall attendees, so the employer lacked verifiable evidence that the respondent was accorded an opportunity to defend himself. Section 41 requirements are mandatory and unauthenticated documents have no probative value.

p. 6
03

Effect of criminal proceedings on disciplinary process

Holding

The trial magistrate erred in holding that the disciplinary process was tied to the criminal trial; the two are independent

Reasoning

Relying on Rika J. in James Mugera Igati and Court of Appeal authority, the court held that the disciplinary process is a private process between employer and employee, independent of the criminal process, with different standards of proof, and an acquittal does not bind the employer. The trial court's finding of multiple trials was an error.

p. 8
04

Reliefs: compensation quantum, notice pay and gratuity

Holding

12 months' compensation reduced to 3 months' gross salary; notice pay set aside; gratuity set aside for lack of factual/legal basis

Reasoning

The respondent substantially contributed to the dismissal and did not appeal it, though he served over 28 years with no recorded misconduct, justifying 3 months' compensation. Summary dismissal under Section 44(1) dispenses with notice. Gratuity lacked any contractual or CBA foundation.

p. 8

Legal principles established

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  • The institution of criminal proceedings is not a bar to disciplinary proceedings based on similar facts; an acquittal does not bind the employer
  • An unsigned document has no probative value in a court of law
  • Availing documents to be relied upon at a disciplinary hearing to the employee is an integral part of the right to fair hearing

Court orders

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  1. 1.Award of one month's salary in lieu of notice is set aside
  2. 2.Compensation for unlawful dismissal is reduced to the equivalent of 3 months gross salary, Kshs.77,857.05
  3. 3.Gratuity award of Kshs.1,064,046.35 is set aside
  4. 4.Other awards are upheld
  5. 5.Parties shall bear own costs of the appeal
On appeal from
Winam Principal Magistrate's Court (SPM ELRC)
ELRC No. E10 of 2023
Jurisdiction invoked
First appeal from the subordinate court under the Employment and Labour Relations Court jurisdiction (Employment Act and ELRC procedure)

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, "G4S Kenya Limited v Busuru (Appeal E048 of 2024) [2025] KEELRC 958 (KLR)", Case Analysis (2025). ELRC No. E10 of 2023 (appeal from Winam SPM ELRC No. E10 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/958/eng@2025-03-27

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