G4S Kenya Ltd v Mutinda & another (Employment and Labour Relations Appeal E018 & E019 of 2023 (Consolidated)) [2025] KEELRC 2047 (KLR)
The bottom line
#A Kenyan court ruled G4S wrongly fired a cashier over missing money because the company could not prove he stole it.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of the termination
The appellant failed to demonstrate a reasonable basis to suspect the respondents of stealing; the termination was unfair.
The dismissal was based on suspicion arising from alleged non-compliance with CIT procedures. The training certificate produced did not cover cash-in-transit topics, DW1 admitted the manual was never given to the respondents, and the investigation report itself recommended training on deposita handling, evidencing a training gap. The money was under armed police escort, seals were confirmed intact at delivery, CCTV of the counting was not produced, and the police escorts were not interviewed, justifying an adverse inference against the employer.
Non-cooperation of the employee at the disciplinary hearing
The employee's refusal to answer questions at the disciplinary hearing cannot be used against him because the burden of justifying termination rests on the employer.
The appellant argued that Mutinda's silence at the disciplinary hearing converted its prima facie case into proof, citing Gibbs v Rea and Ex p TC Coombs. The court rejected this, holding that under section 41 of the Employment Act the employer bore the burden of proving the reason it was contemplating dismissal, so the employee's non-cooperation could not shift that burden.
Interference with trial court's awards of notice pay and 12 months' compensation
The maximum compensation and notice pay awards were justified under sections 49(4) and 35 of the Employment Act given the respondents' 17 years of service and clean disciplinary record.
The appellant sought reduction to two months' compensation relying on Kenya Hotels and Allied Workers Union v Desert Rose, but the court distinguished that case as involving a two-year employee terminated by redundancy. Applying Butt v Khan, the award was not inordinately high; the serious unfounded allegations cast doubt on the respondents' capacity to secure similar employment.
Legal principles established
#- On a first appeal, the court re-evaluates the evidence and reaches its own conclusions while making allowance for not having seen or heard the witnesses.
- Once an employee lays the basis for unfair dismissal, the burden of proving the reason for termination rests on the employer.
- An employer's failure to produce available CCTV footage and to interview independent witnesses may attract an adverse inference that no evidence linked the employees to the loss.
Court orders
#- 1.The appeal is dismissed with costs to the respondent.
- 2.The decision applies to determine Appeal No. E019 of 2023.
- 3.Stay of 30 days.
- On appeal from
- Chief Magistrate's Commercial Courts at Milimani (ELRC)
- MCELRC No. 1850 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's ELRC judgment (memorandum of appeal dated 27 February 2023)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "G4S Kenya Ltd v Mutinda & another (Employment and Labour Relations Appeal E018 & E019 of 2023 (Consolidated)) [2025] KEELRC 2047 (KLR)", Case Analysis (2025). ELRCA/E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2047/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.