PG Security Limited v Ndiwa (Employment and Labour Relations Appeal E013 of 2024) [2025] KEELRC 2085 (KLR)
The bottom line
#A Kenyan court confirmed a security guard was unfairly terminated after a workplace injury, but cut his compensation to the legal 12-month maximum.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent voluntarily resigned or was unfairly terminated
The letter dated 29th September 2020, on its face a resignation, did not establish voluntary resignation; the termination was unfair for want of a justifiable or lawful reason
The Respondent testified he did not write or originate the resignation letter and signed only to obtain a uniform refund, raising a plea of non est factum. The letter itself stated he intended to resume duties once recovered, contradicting a voluntary resignation. RW1's evidence that a desertion letter dated 14th August 2020 was issued and never withdrawn meant employment may already have ended. Either route leads to unfair termination since the Respondent had lawful cause for absence.
Whether the trial court's awards were sustainable
The declaration, one month's pay in lieu of notice and costs were upheld; the compensation awards were set aside as excessive and substituted with Kshs. 60,000 (6 months' salary)
The Respondent was awarded compensation separately for unlawful termination and unfair dismissal, and the 17-month award exceeded the statutory maximum of twelve months under section 49(1)(c). Weighing the section 49(4) factors, the court found the compensation inordinately high, and in exercise of its discretion substituted an award of six months' salary while leaving the rest of the trial court's awards undisturbed.
Whether the Respondent could be dismissed for desertion
No - he was absent for lawful cause known to the Appellant, so dismissal for desertion would itself be unfair
The Appellant's own witness confirmed there was an agreement that the Respondent could return to work after recovery, and the desertion letter was issued while the Respondent was on 60 days' sick leave following a workplace accident. Since section 44(4)(a) permits dismissal for absenteeism only where the absence is without leave or other lawful cause, and the Appellant knew the cause, a desertion-based dismissal could not stand.
Legal principles established
#- A first appellate court must re-evaluate and re-examine the evidence adduced in the trial court and reach its own findings, bearing in mind it did not hear or see the parties testify.
- Compensation for unfair termination under section 49(1)(c) of the Employment Act cannot exceed twelve months' gross salary.
- A plea of non est factum is an exception to the rule that a party is bound by a document he has signed.
- Absenteeism constitutes a justifiable ground for summary dismissal under section 44(4)(a) only if the employee is absent without leave or other lawful cause.
Court orders
#- 1.Upheld the finding of the trial court that the termination of the Respondent's employment was unfair and the declaration that the dismissal was unfair
- 2.Set aside the trial court's award of compensation for unfair termination (Kshs. 100,000 and 17 months' salary at Kshs. 225,000) and substituted an award of Kshs. 60,000 equivalent to 6 months' salary
- 3.Upheld the award of one month's salary in lieu of notice at Kshs. 10,000
- 4.Upheld the order for costs of the lower court and interest until payment in full
- 5.Ordered each party to bear its own costs of the appeal
- On appeal from
- Eldoret Chief Magistrate's Court (CMELRC)
- E054 of 2021
- Jurisdiction invoked
- First appeal from the magistrates' court (ELRC appellate jurisdiction under the Employment and Labour Relations Court Act); appeal decided on written submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PG Security Limited v Ndiwa (Employment and Labour Relations Appeal E013 of 2024) [2025] KEELRC 2085 (KLR)", Case Analysis (2025). Eldoret ELRC Appeal (Memorandum of Appeal dated 6th March, 2024), arising from Eldoret CMELRC No. E054 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2085/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.