Ochieng v G4S Kenya Limited (Appeal E068 of 2024) [2025] KEELRC 2747 (KLR)
The bottom line
#G4S's dismissal of an employee for a racial remark stood on the reason but failed because the company rushed the disciplinary process and withheld the investigation report.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The respondent had a valid and fair reason - the appellant's racial/ethnic offensive remark to a client qualified as gross misconduct under Section 44 of the Employment Act
The court found the appellant made a racial/ethnic offensive remark to Mr. Dipen of Ima Distributors during an argument. The test under Section 45(2) is partly subjective, requiring the employer to prove only reasons it genuinely believed to exist. The appellant admitted his remark was unprofessional and apologised in his statement. His conduct was inconsistent with a customer-facing courier role.
Procedural fairness
The summary dismissal was procedurally flawed and unfair within the meaning of Section 45 of the Employment Act
The appellant was given only a few hours to respond to the notice to show cause, impairing his right to fair trial. Further, the respondent did not furnish him with the investigation report containing his statement and those of other interviewees, undermining his ability to prepare a defence, request cross-examination of witnesses, or have representation. These flaws vitiated the entire disciplinary process.
Interference with the trial court's discretion
The trial magistrate failed to take into account relevant considerations, justifying interference with the discretionary dismissal of the suit
Applying the settled principles in Mbogo v Shah and United India Insurance v East African Underwriters, the court found the trial magistrate failed to consider that the appellant had only a few hours to respond and that the investigation report was not shared, warranting setting aside the trial judgment.
Quantum of compensation
The equivalent of two months' gross salary (Kshs.58,926.70) was fair compensation under Section 49(1)(c)
The court considered the appellant's service of about 14 years and 5 months, his clean disciplinary record, and his appeal against dismissal, but also his substantial contribution to the summary dismissal. His December 2022 payslip showed a salary of Kshs.29,463.35, making two months' gross salary Kshs.58,926.70.
Legal principles established
#- For a termination of employment to pass muster, there must be both substantive justification and procedural fairness
- A person facing allegations is entitled to particulars and sufficient time to respond to the notice to show cause
- Failure to furnish an employee with the investigation report relied upon vitiated the disciplinary process, whether or not the employee requested it
- The test under Section 45(2) of the Employment Act is partly subjective - the employer need only prove reasons it genuinely believed to exist
Court orders
#- 1.Appeal allowed and decision of the trial court set aside
- 2.Declaration that termination of the appellant's employment by the respondent was unfair
- 3.Equivalent of two months gross salary, Kshs.58,926.70, awarded as compensation under Section 49(1)(c) of the Employment Act
- 4.Costs of the appeal to the appellant
- 5.Certificate of service to be issued (noted as a legal imperative as ordered by the trial court)
- On appeal from
- Hon. V. Adhiambo (Kisumu MCELRC No. E034 of 2024)
- Kisumu MCELRC No. E034 of 2024
- Jurisdiction invoked
- First appeal from the trial court (ELRC appeal jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v G4S Kenya Limited (Appeal E068 of 2024) [2025] KEELRC 2747 (KLR)", Case Analysis (2025). Kisumu MCELRC No. E034 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2747/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.