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ELRCDismissedNairobi MCELRC Appeal (Memorandum of Appeal dated 20th November 2024), appealing Nairobi MCELRC Cause No. E590 of 2020· [2025] KEELRC 1593 (KLR)

Ware v G4S Kenya Ltd (Appeal E179 of 2023) [2025] KEELRC 1593 (KLR)

Employment and Labour Relations Court
23 May 2025
5,218 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Joshua Ware, a security guard employed by G4S Kenya Limited, appealed against the decision of Hon. P. Muholi (PM) in Nairobi MCELRC Cause No. E590 of 2020, delivered on 16th July 2021, dismissing his claim for declarations that his summary dismissal was unfair, terminal dues of Kshs. 179,000, 12 months' compensation of Kshs. 312,000, notice pay and costs. He had been dismissed after a patient he was assigned to guard at Nairobi Hospital escaped on 12th April 2018 while he was away from his assigned post. On appeal, he contended the magistrate erred in holding him liable without cogent admissible evidence, in relying on hearsay evidence and an investigation report referencing CCTV footage never produced under sections 106A and 106B of the Evidence Act, and in failing to find the dismissal unfair under sections 41, 45 and 49 of the Employment Act. The court framed three issues: validity of the reason for termination, procedural fairness, and entitlement to relief. Re-evaluating the evidence as a first appellate court guided by Selle v Associated Motor Boat Co and Mbogo v Shah, the court found the appellant admitted leaving his assigned post and that the patient escaped; the nurse-instruction claim was uncorroborated. The CCTV footage was immaterial given the admission, and the appellant never sought its production. Procedurally, the appellant was suspended, investigated, and given a disciplinary hearing with a shop steward present. The trial court's findings were upheld on all three issues and the appeal was dismissed with no order as to costs, the file being marked as closed.

Key legal issues

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01

Whether the reason for termination (gross misconduct for abandoning assigned post leading to a patient's escape) was valid and fair

Holding

The reason was valid and fair; the appellant admitted leaving his assigned post and the patient escaped, amounting to gross misconduct

Reasoning

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.

p. 8
02

Whether the hearsay evidence (nurse's statements, supervisor's statement, CCTV references) was properly relied upon

Holding

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

Reasoning

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.

p. 5
03

Whether the termination procedure complied with sections 41 and 45 of the Employment Act

Holding

Procedure was fair: suspension letter issued, investigations done, disciplinary hearing held with a shop steward present and representations made

Reasoning

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.

p. 10
04

Whether the appellant was entitled to terminal dues, notice pay and compensation

Holding

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

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed as without merit
  2. 2.No order as to costs in the appeal
  3. 3.The file is marked as closed

Authorities

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Legislation

  • Evidence ActSections 106A, 106B
  • Evidence ActSection 35(2)
  • Evidence ActSection 33(b)
  • Employment ActSection 49(1)
  • Employment ActSection 41
  • Employment ActSections 45(1), 45(2), 45(4)
  • Employment ActSection 43
  • Employment Act 2007Section 44
  • Employment ActSection 46

Cases cited (8)

  • Selle v Associated Motor Boat Co
    [1968] EA 123
  • Mbogo V Shah
    [1968] EA Page 93
  • Republic v Mark Mungatha And Another
    (2020) e KLR
  • Kinyati V Republic
    [1984] e KLR
  • Kenya Hotels Limited vs. Oriental Commercial Bank Limited
    [2019] eKLR
  • Robert Kenga & another v Ocean Sports Resort
    [2015] eKLR
  • David Gichana Omuya Vs Mombasa Maize Millers Ltd
    [2014] e KLR
  • Alphonce Sulpice Mzenge Vs Mombasa Air Safari Ltd
    Mombasa Cause No. 110 of 2013
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

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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, "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.