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ELRCPartially AllowedCause No E238 of 2021· [2025] KEELRC 2474 (KLR)

Mutisya v G4S Kenya Limited (Cause E238 of 2021) [2025] KEELRC 2474 (KLR)

Employment and Labour Relations Court
19 September 2025
9,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee over KShs 2 million because his dismissal process was flawed, even though his employer had valid reasons to fire him.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 27th June 1992 and rising to the position of Resourcing Manager, was summarily dismissed on 20th March 2018 following a disciplinary hearing on allegations of insubordination, chiefly failure to obey lawful instructions from the Human Resource Director. He sought declarations of unfair termination and discrimination plus extensive monetary reliefs exceeding Kshs 60 million. The Respondent maintained the dismissal was lawful, substantively and procedurally fair. The Court framed four issues: validity of the reason for termination, procedural fairness, discrimination, and entitlement to reliefs. On substance, the Court found most allegations unsubstantiated or controverted, except the failure to submit appraisal documents as directed, which constituted insubordination under Section 44(4)(e) of the Employment Act giving the employer a valid reason. On procedure, the Court found the process fatally flawed: a panel member (Mr Mwove) faced a real likelihood of apparent bias, fresh allegations were sprung on the Claimant at the hearing, and the panel Secretary was not an HR person contrary to the Respondent's Disciplinary Policy. The discrimination claim failed for want of a prima facie case under Section 5(7). The Court entered judgment for the Claimant, awarding one month's salary in lieu of notice (Kshs 354,839.88), four months' gross salary as compensatory damages (Kshs 1,419,359.52), payment for 24 accrued leave days (Kshs 283,871.90), totalling Kshs 2,058,071.30 with interest and costs, plus a certificate of service within 14 days. Claims for lost earnings, bonuses, salary underpayments, car allowance and discrimination damages were declined.

Key legal issues

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01

Valid and fair reason for termination

Holding

Only one of the allegations (failure to submit appraisal documents) amounted to insubordination constituting a valid and fair reason; the others were unsubstantiated or controverted

Reasoning

The Court examined each allegation. The credit-controller recruitment allegation was not controverted, the courier allegation was uninvestigated, and the intimidation allegation had no supporting evidence. However, the Claimant admitted receiving the email of 12th February 2018 directing him to avail appraisal documents and there was no evidence he complied, giving the employer a valid reason based on insubordination under Section 44(4)(e).

p. 14
02

Procedural fairness of the disciplinary process

Holding

The termination was procedurally unfair due to likelihood of bias of a panel member, ambush with new allegations at the hearing, and breach of the disciplinary policy on the panel Secretary

Reasoning

The Claimant had previously accused Mr Mwove of recruitment malpractice, making the likelihood of bias real; apparent bias alone disqualifies a member. Fresh allegations were introduced at the hearing without notice, ambushing the Claimant. Mr Luvai, a Security & Risk Manager, sat as Secretary contrary to Clause 12.3.6 requiring an HR person. These lapses rendered the process unjust and inequitable.

p. 15
03

Discrimination and unfair labour practices

Holding

Claim failed; the Claimant did not establish a prima facie case of discrimination to shift the burden to the Respondent

Reasoning

CW2 gave no documentary evidence of the 5% salary increment, there was no evidence of bonus refunds or payments to colleagues, the car allowance consolidation was not disputed, and the car loan application was not proved. Without a prima facie case, the burden under Section 5(7) of the Employment Act never shifted to the Respondent.

p. 16

Legal principles established

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  • Procedural fairness extends beyond notice and a hearing; decision-makers in disciplinary proceedings must be impartial, and apparent bias suffices to disqualify a panel member
  • An employer may summarily dismiss an employee who knowingly disobeys a lawful and proper command under Section 44(4)(e) of the Employment Act
  • Lost earnings from termination to retirement age are anticipatory and not awardable

Court orders

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  1. 1.A declaration that the termination of the Claimant from employment was procedurally unfair and unlawful
  2. 2.The Claimant is awarded one (1) month's salary in lieu of notice, being Kshs 354,839.88
  3. 3.The Claimant is awarded the sum of Kshs 1,419,359.52 being compensatory damages equivalent to four (4) months of his last gross salary
  4. 4.The Claimant is awarded the sum of Kshs 283,871.90 being payment for accrued leave days for a period of 24 days
  5. 5.The total award is Kshs 2,058,071.30
  6. 6.Interest on the amount in (e) at court rates from the date of Judgment until payment in full
  7. 7.The Claimant shall also have the costs of the suit
  8. 8.The Respondent shall issue the Claimant with a certificate of service within 14 days from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya (2010)Article 50
  • Constitution of Kenya (2010)Article 28
  • Constitution of Kenya (2010)Article 159(2)(d)
  • Constitution of Kenya (2010)Article 48
  • Employment ActSection 41
  • Employment ActSection 44(4)(e)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 5(7)
  • Employment ActSection 28(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (9)

  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • South African Revenue Service v Commission for Conciliation, Mediation and Arbitration & Others
    (2017) ZACC 29
  • British Columbia (Public Service Employee Relations Commission) v BCGSEU
    [1999] 3 SCR 3
  • Polkey v AE Dayton Services Ltd
    [1988] AC 344
  • Josephine M. Ndungu & others v Plan International Inc
    [2019] eKLR
  • Robert Kenga & another v Ocean Sports Resort
    [2015] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • CFC Stanbic Bank Limited v Danson Mwashako Mwakuwona
    [2015] eKLR
  • D K Njagi Marete v Teachers Service Commission
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; reliefs founded on Articles 28, 41 and 50 of the Constitution of Kenya (2010) and Sections 41, 44(4)(e), 45(2)(c), 5(7) and 28(4) of the Employment 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, "Mutisya v G4S Kenya Limited (Cause E238 of 2021) [2025] KEELRC 2474 (KLR)", Case Analysis (2025). Cause No E238 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2474/eng@2025-09-19

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