Wafula v Arn Security Consultants & Training Services Ltd (Employment and Labour Relations Cause E356 of 2024) [2026] KEMC 32 (KLR)
The bottom line
#A Nakuru court upheld a watchman's dismissal for theft, ruling the employer followed fair procedure and the employee couldn't prove underpayment.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was fair and lawful
The termination was substantively and procedurally fair; the Claimant admitted the theft, was heard, faced the complainant RW4, and prior warnings supported proportionality.
Section 45(2) requires both substantive and procedural fairness. An investigation report documented the theft; the Claimant admitted taking the fruits; he was invited to a disciplinary hearing with notice of allegations and right to representation; he questioned RW4 and signed the minutes. Absence of the ultimate owner of the goods (Mr. Charles) was legally irrelevant, and absence of a police report did not invalidate the dismissal since the misconduct was admitted.
Whether the Claimant proved underpayment contrary to the wages order
No underpayment was proved; the Claimant did not attach the relevant wages order.
The legal burden rested on the Claimant to demonstrate on a balance of probabilities that his salary fell below the applicable statutory minimum. He was paid a consolidated monthly salary, and the Regulation of Wages (General) (Amendment) Order he relied on was not attached as evidence, so the claim failed.
Whether the Claimant was entitled to a refund of NSSF deductions
The claim failed; deductions were proved remitted before the suit, and NSSF has its own recovery mechanisms.
Respondent's exhibits 13 and 14 confirmed remittance of the NSSF deductions long before the suit was instituted. Further, following Rosemary Khasiala Lung'atso v Elin Hilwig, courts will not order refunds of statutory deductions where the employee is registered with NSSF, since the scheme has mechanisms to recover unremitted contributions from the employer.
Legal principles established
#- A termination of employment is unfair only if the employer fails to prove a valid and fair reason and fair procedure (section 45(2) Employment Act).
- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer (section 47(5) Employment Act).
- Disciplinary processes in employment are independent of criminal processes; an employer need not await police investigations or criminal court findings.
- It is the person who lodged the complaint against the employee, not the ultimate owner of the alleged stolen items, who must be availed at the disciplinary hearing.
Court orders
#- 1.The Claim is dismissed in its entirety
- 2.Each party to bear own costs
- Jurisdiction invoked
- Not expressly stated; first-instance employment claim under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula v Arn Security Consultants & Training Services Ltd (Employment and Labour Relations Cause E356 of 2024) [2026] KEMC 32 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/32/eng@2026-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.