Sheikh v Motrex Ltd (Employment and Labour Relations Cause 245 of 2019) [2026] KEMC 783 (KLR)
The bottom line
#A Mombasa court confirmed an employer may fairly dismiss a guard caught sleeping on duty, but must still give employees time to prepare for disciplinary hearings.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of termination
Termination was substantively justified; the Claimant's admission in the disciplinary minutes established that he slept on duty, constituting gross misconduct for a security guard
The court declined to rely on the unproduced CCTV footage or the disputed witness statement, finding the contemporaneous disciplinary minutes more persuasive. In those minutes the Claimant admitted being asleep during the theft incident. Sleeping on guard duty substantially defeats the purpose of the employment and constitutes wilful neglect under section 44(4) of the Employment Act, justifying summary dismissal.
Procedural fairness
Termination was procedurally unfair because the show-cause notice and disciplinary hearing were issued and held on the same day
Although a shop steward was present, the union was copied and the Claimant was heard, issuing the Notice to Show Cause and the hearing invitation simultaneously on 3rd October 2017 gave the employee no meaningful time to reflect, consult his representative or prepare his defence against a matter carrying the ultimate sanction of dismissal. The subsequent admission did not retrospectively cure the defect.
Compensation for unfair termination
One month's basic salary (KShs.12,588) awarded under section 49(1)(c) given the Claimant's contribution to the termination
Although the Claimant served nine years, his own misconduct was the principal cause of separation. The unfairness found related only to the abbreviated procedure. Giving significant weight to his contribution, the court considered one month's basic salary adequate compensation rather than the twelve months' maximum claimed.
Limitation on historical monetary claims
House allowance, public holiday and leave claims accruing outside the limitation period were statute-barred
The claim was instituted on 1st April 2019. Recurring entitlements that accrued outside the actionable period cannot be revived merely because the employment continued. Within the residual period, the documentary evidence showed house allowance of KShs.2,500 was separately paid and the final-dues voucher made provision for leave and notice.
Certificate of Service
The certificate was issued and received on 31st August 2018 as acknowledged by the Claimant in his own handwriting
The Claimant's oral testimony that he never received a Certificate of Service was contradicted by the documentary record bearing his handwritten acknowledgment and signature. The court found the certificate was issued but declined to use the contradiction to reject every other aspect of his case.
Legal principles established
#- Sections 43 and 45 of the Employment Act place the burden on the employer to demonstrate the reason for termination and its validity and fairness
- An admission of misconduct strengthens substantive justification but does not cure procedural deficiencies
- Same-day notice to show cause and disciplinary hearing denies an employee reasonable time to prepare
- Recurring monetary entitlements accruing outside the limitation period cannot be revived because employment continued
Court orders
#- 1.A declaration that the Respondent had a valid and fair substantive reason to terminate but the termination was procedurally unfair for failure to afford the Claimant reasonable time to prepare for the disciplinary hearing
- 2.The Claimant awarded KShs.12,588, equivalent to one month's basic salary, as compensation for procedural unfairness
- 3.The claims for unpaid October salary, salary in lieu of notice, house allowance, public-holiday pay and outstanding leave dismissed
- 4.A finding that a Certificate of Service dated 31st August 2018 was issued to and received by the Claimant; the prayer for a Certificate of Service is spent
- 5.Interest on the awarded sum at court rates from the date of Judgment until payment in full
- 6.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations jurisdiction of the Magistrates Court (MCELRC Cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikh v Motrex Ltd (Employment and Labour Relations Cause 245 of 2019) [2026] KEMC 783 (KLR)", Case Analysis (2026). MCELRC Cause No. 245 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/783/eng@2026-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.