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ELRCPartially AllowedNot stated in the judgment (Statement of Claim dated 25th July 2017)· [2025] KEELRC 1714 (KLR)

Ngagaya v Securitas Kenya Limited (Cause 1459 of 2017) [2025] KEELRC 1714 (KLR)

Employment and Labour Relations Court
9 May 2025
2,972 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from around 2016, sued for unfair and wrongful termination following his summary dismissal on or about 3rd May 2017 after taking 21 days' leave during which his brother stood in for him at his post. The respondent asserted the claimant absconded duty and resigned verbally, and that its client cancelled the contract after finding a stranger at the premises. The court framed two issues: whether the termination was wrongful and unfair, and whether the claimant was entitled to the reliefs sought. Applying sections 43, 45(2) and 41 of the Employment Act and the reasonableness test in British Leyland v Swift, the court found a valid and justified reason for termination existed. However, on procedure, no notice under section 41 was proved and no evidence of the alleged calls to the claimant was adduced; applying Simon Mbithi Mbane v Inter Security Services Limited, the court held the termination was unfair for lack of procedural fairness only. On reliefs, the court refused 12 months' compensation (holding that compensating an employee where valid reasons exist would reward misconduct), denied gratuity (not contractual or statutory), declared NSSF/NHIF claims the preserve of regulators, and limited underpayment to night-guard differentials since there was no evidence of day shifts. It awarded notice pay of Kshs. 11,330, service pay of Kshs. 5,665, and underpayment backpay of Kshs. 39,960, totaling Kshs. 56,955 with interest at court rates from the date of judgment, plus costs of the suit. A stay of execution was granted for 30 days. Judgment was delivered at Nairobi on 9th May 2025 by Lady Justice J.W. Keli.

Key legal issues

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01

Whether the reason for termination was valid

Holding

A valid reason existed - the claimant left work unauthorised and placed a stranger (his brother) at the client's premises, causing the client to cancel the contract

Reasoning

The claimant admitted leaving employment duties to his brother, whom the client treated as a stranger. The court applied the reasonableness test from British Leyland UK Limited v Swift, holding that a reasonable employer might have dismissed the claimant in those circumstances, satisfying the substantive fairness limb of section 45(2).

p. 4
02

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair - no notice under section 41 was served and no evidence of efforts to contact the claimant was adduced

Reasoning

Although absconding is gross misconduct under section 44, the employer must still follow section 41. No evidence of service of notice of termination was filed, and RW admitted he had no evidence of the alleged calls to the claimant. Following Simon Mbithi Mbane v Inter Security Services Limited, the employer failed to prove efforts to contact the employee, and was at fault.

p. 5
03

Whether the claimant was entitled to the reliefs sought

Holding

Only notice pay, service pay and underpayment backpay were awarded; 12 months' compensation, gratuity, NSSF/NHIF and day-guard underpayment claims were refused

Reasoning

Because valid reasons existed, the unfairness was procedural only, warranting notice pay rather than full compensation. Service pay was due for one year at 15 days per year. Underpayment was limited to night-guard minimum wage differentials as there was no evidence of day shifts.

p. 6

Legal principles established

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  • An employer bears the burden of proving both the validity of the reason for termination and compliance with fair procedure under sections 43, 45 and 41 of the Employment Act
  • An allegation of absconding obliges the employer to demonstrate reasonable efforts to contact the employee before termination
  • Service pay under section 35(5) and (6) of the Employment Act is payable where the employee does not belong to NSSF or another pension scheme
  • Claims for unremitted statutory dues (NSSF/NHIF) can only be pursued by the regulators, not by the employee

Court orders

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  1. 1.Notice pay of Kshs. 11,330
  2. 2.Service pay of Kshs. 5,665
  3. 3.Underpayment of salary Kshs. 39,960
  4. 4.Total sum of Kshs. 56,955 payable with interest at court rates from date of judgment until payment in full
  5. 5.Costs of the suit to the claimant
  6. 6.Stay of execution granted for 30 days

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 47(5)
  • Employment Actsection 43
  • Employment Actsection 44
  • Employment Actsection 41
  • Employment Actsection 35(5 and 6)
  • Regulation of Wages (General) (Amendment) Order 2015minimum wage provisions

Cases cited (3)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • British Leyland UK Limited v Swift
    (1981) I.R.L.R 91
  • Simon Mbithi Mbane Vs Inter Security Services Limited
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act (ss. 41, 43, 44, 45, 47(5)) in unfair termination and wrongful dismissal claims

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ngagaya v Securitas Kenya Limited (Cause 1459 of 2017) [2025] KEELRC 1714 (KLR)", Case Analysis (2025). Not stated in the judgment (Statement of Claim dated 25th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1714/eng@2025-05-09

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