Ngagaya v Securitas Kenya Limited (Cause 1459 of 2017) [2025] KEELRC 1714 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination was valid
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
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).
Whether the termination was procedurally fair
The termination was procedurally unfair - no notice under section 41 was served and no evidence of efforts to contact the claimant was adduced
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.
Whether the claimant was entitled to the reliefs sought
Only notice pay, service pay and underpayment backpay were awarded; 12 months' compensation, gratuity, NSSF/NHIF and day-guard underpayment claims were refused
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.
Legal principles established
#- 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
#- 1.Notice pay of Kshs. 11,330
- 2.Service pay of Kshs. 5,665
- 3.Underpayment of salary Kshs. 39,960
- 4.Total sum of Kshs. 56,955 payable with interest at court rates from date of judgment until payment in full
- 5.Costs of the suit to the claimant
- 6.Stay of execution granted for 30 days
- Jurisdiction invoked
- Original jurisdiction under the Employment Act (ss. 41, 43, 44, 45, 47(5)) in unfair termination and wrongful dismissal claims
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mas Intimates Kenya (EPZ) Limited v Ochieng (Employment and Labour Relations Appeal E012 of 2025) [2025] KEELRC 3708 (KLR)[2025] KEELRC 3708 (KLR)17 Dec 2025
Cite this brief
#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.