Ware v G4S Kenya Ltd (Appeal E179 of 2023) [2025] KEELRC 1593 (KLR)
The bottom line
#Kenya's Employment Court upheld G4S's dismissal of a security guard who abandoned his post, confirming that admitted misconduct plus a fair hearing defeats unfair termination claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination (gross misconduct for abandoning assigned post leading to a patient's escape) was valid and fair
The reason was valid and fair; the appellant admitted leaving his assigned post and the patient escaped, amounting to gross misconduct
Re-evaluating the evidence, the court found the appellant admitted he was assigned to guard a patient at the MCF ward and was not at his station when the patient escaped. His claim that a nurse gave other instructions was uncorroborated and the nurse was not his boss. CCTV footage was immaterial given the admission. Applying Mbogo v Shah, no basis existed to disturb the trial court's finding.
Whether the hearsay evidence (nurse's statements, supervisor's statement, CCTV references) was properly relied upon
The hearsay objection failed: the supervisor's statement fell within statutory exceptions and the CCTV footage was immaterial given the appellant's admission; he never sought its production
The court found the appellant admitted the escape, so production of CCTV footage (belonging to the hospital, not the respondent) would have made no difference. The site manager's statement was recorded in the course of professional duty and he had retired, falling within exceptions under section 33(b) of the Evidence Act. The appellant never objected to the investigation report or sought summons for the footage.
Whether the termination procedure complied with sections 41 and 45 of the Employment Act
Procedure was fair: suspension letter issued, investigations done, disciplinary hearing held with a shop steward present and representations made
The court noted the appellant was issued a suspension letter, investigations were conducted and a disciplinary hearing held. The minutes, signed by the appellant, showed he actively participated and was accompanied by a shop steward. The court was satisfied of compliance with section 41 and found no basis to disturb the trial court's finding on procedural fairness.
Whether the appellant was entitled to terminal dues, notice pay and compensation
No relief was due: salary and leave had been computed, service pay was inapplicable as the claimant was under NSSF, and dues were offset against SACCO debts
The trial court found unpaid salary and leave had been computed and that service pay was not due because the claimant was a member of NSSF. The appellant's challenge to dues paid to the SACCO failed because he did not dispute owing debts to the SACCO. Since the termination was substantively and procedurally fair, no notice pay or compensation for unfair dismissal arose.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence itself but make due allowance for not having seen or heard the witnesses
- An appellate court will not interfere with an inferior court's exercise of discretion unless the decision is clearly wrong or based on misdirection
- Under section 43 of the Employment Act, the employer must prove the reason for termination, failing which the termination is unfair under section 45
Court orders
#- 1.The appeal is dismissed as without merit
- 2.No order as to costs in the appeal
- 3.The file is marked as closed
- On appeal from
- Principal Magistrate's Court, Nairobi (Employment and Labour Relations)
- Nairobi MCELRC Cause No. E590 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's court (Employment Act claims); memorandum of appeal dated 20th November 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ware v G4S Kenya Ltd (Appeal E179 of 2023) [2025] KEELRC 1593 (KLR)", Case Analysis (2025). Nairobi MCELRC Appeal (Memorandum of Appeal dated 20th November 2024), appealing Nairobi MCELRC Cause No. E590 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1593/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.