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ELRCPartially AllowedNot stated in the judgment (Statement of Claim dated 31st December 2015)· [2025] KEELRC 1923 (KLR)

Omolo v Cobra Security Company Limited (Employment and Labour Relations Cause 28 of 2015) [2025] KEELRC 1923 (KLR)

Employment and Labour Relations Court of Kenya
26 June 2025
2,339 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a security guard's dismissal unfair because the employer couldn't prove desertion or show the worker was given a hearing before termination.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent security company, sued over the termination of his employment, claiming a declaration that his dismissal was unlawful and unfair, unpaid October 2014 salary, notice pay, underpayments, overtime, twelve months' compensation for unfair dismissal, an order for DPP investigations, a certificate of service, interest and costs. The Respondent maintained that the Claimant attempted to steal a lorry battery at a client's premises, absconded duty, and was lawfully terminated for gross misconduct, having been paid for days worked. The court, per Ocharo Kebira J, framed two issues: whether the termination was unfair, and entitlement to reliefs. It held that an employer alleging desertion must prove efforts to secure the employee's return or notice of contemplated disciplinary action, and the Respondent adduced no such evidence, failing the twin burden under sections 43 and 45(2) of the Employment Act; the termination was substantively unfair. No evidence of compliance with the mandatory section 41 hearing procedure was presented, so the termination was also procedurally unfair. On reliefs, the court awarded 4 months' gross salary as compensation under section 49(1)(c), one month's notice pay at the minimum wage of KShs. 9,780, unpaid October salary of KShs. 4,238 (unrebutted), and service pay of KShs. 2,037.50, holding that minimum wages cannot be contracted out of. The claimed 12-month compensation, overtime, underpayments as quantified, the DPP referral and the certificate of service were not awarded. Judgment was entered for the Claimant with costs and interest.

Key legal issues

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01

Whether the termination was substantively unfair

Holding

The Respondent failed to discharge its statutory burden under sections 43 and 45(2) of the Employment Act of proving a valid and fair reason, having alleged desertion without proving efforts to secure the employee's return or notice of contemplated disciplinary action.

Reasoning

The Respondent contended that the Claimant deserted duty after an attempted theft. The court held that desertion must be proven convincingly, including evidence of efforts to have the employee resume duty or notice that termination for desertion was contemplated. No such evidence was adduced, so the reason for termination was neither valid nor fair.

p. 4
02

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair because the employer produced no evidence of compliance with the mandatory hearing procedure in section 41 of the Employment Act.

Reasoning

Section 41 requires notification of grounds, a sufficient opportunity to make representations, and consideration of those representations. The legal burden of proving procedural fairness lies on the employer under section 45(2)(c). Although the Respondent alleged the dismissal was fair, it presented no evidence of the disciplinary process; without evidence, the burden could not be discharged.

p. 5
03

Compensation for unfair termination under section 49(1)(c)

Holding

The Claimant was awarded the equivalent of 4 months' gross salary (Kshs. 39,120) rather than the 12 months sought, the award being discretionary.

Reasoning

The court considered the manner of termination, which it found constituted unfair practice, the extent of the deviation from substantive and procedural fairness, and the short duration of service of five months in exercising its discretion to limit compensation to four months' gross salary.

p. 5
04

Minimum wage and entitlement to unpaid salary, notice pay and service pay

Holding

Minimum wages cannot be contracted out of under the Labour Institutions Act; the Claimant was awarded one month's notice pay at the minimum wage (Kshs. 9,780), unpaid October 2014 salary (KShs. 4,238) as unrebutted, and service pay (KShs. 2,037.50) as the Respondent did not prove an exclusion.

Reasoning

The Respondent paid KShs. 7,000 against a minimum wage of KShs. 9,780, which the law does not permit. The Claimant's assertion of non-payment for October 2014 was unrebutted by any evidence. Service pay is a statutory benefit unless the employee falls within excluded schemes, which the Respondent failed to demonstrate.

p. 5

Legal principles established

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  • An employer alleging desertion must prove efforts made to get the employee back to work or that disciplinary action for desertion was contemplated.
  • The procedure under section 41 of the Employment Act (notification, hearing, and consideration of representations) is mandatory and failure to adhere to it renders a termination unfair.
  • An employer cannot contract out of minimum wages prescribed in Wage Orders; minimum wages apply to the employment contract notwithstanding a lower contractual amount.
  • A legal burden is discharged only by sufficient evidence; where no evidence is adduced, the burden cannot be said to have been discharged.

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was both procedurally and substantively unfair.
  2. 2.One month's salary in lieu of notice, Kshs. 9,780.
  3. 3.Compensation under section 49(1)(c) of the Employment Act, 4 months' gross salary, Kshs. 39,120.
  4. 4.Unpaid salary for the month of October 2014, KShs. 4,238.
  5. 5.Service pay, KSHS. 2,037.50.
  6. 6.Costs of this suit to the Claimant.
  7. 7.Interest at court rates on the sums awarded from the date of judgment till full payment.

Authorities

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Legislation

  • Employment ActSections 41, 43, 45(2), 45(2)(c), 49(1)(c), 35, 36, 51(1)
  • Labour Institutions ActGeneral (minimum wages non-derogable)
  • Regulation of Wages (Protective Security Services) OrderRegulations 7, 8, 23
  • General Wages OrderMinimum wage for employees in the private security sector

Cases cited (1)

  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act and the Labour Institutions Act

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, "Omolo v Cobra Security Company Limited (Employment and Labour Relations Cause 28 of 2015) [2025] KEELRC 1923 (KLR)", Case Analysis (2025). Not stated in the judgment (Statement of Claim dated 31st December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1923/eng@2025-06-26

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