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MagistratePartially AllowedMCELRC Cause No. 245 of 2019· [2026] KEMC 783 (KLR)

Sheikh v Motrex Ltd (Employment and Labour Relations Cause 245 of 2019) [2026] KEMC 783 (KLR)

Chief Magistrates Court at Mombasa
27 August 2026
3,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Mohamed Omar Sheikh, a security guard employed by Motrex Limited from November 2008 to October 2017, claimed his summary dismissal following a theft at the respondent's Mikindani yard on the night of 1st/2nd October 2017 was unfair, and sought unpaid October salary, notice pay, nine years' house allowance, public-holiday pay, outstanding leave, twelve months' compensation and a Certificate of Service. The respondent admitted the employment relationship but justified the dismissal on the ground that the Claimant was asleep on duty. The court framed five issues: substantive reason, procedural fairness, monetary reliefs, limitation and costs. On the evidence of contemporaneous disciplinary minutes in which the Claimant admitted having been asleep, the court found a valid and fair substantive reason for termination, declining to rely on the unproduced CCTV footage or a disputed witness statement. However, because the Notice to Show Cause and the disciplinary hearing were both issued and held on 3rd October 2017, the Claimant was denied a reasonable opportunity to prepare, rendering the termination procedurally unfair. The court awarded one month's basic salary, KShs.12,588, as compensation under section 49 of the Employment Act, giving significant weight to the Claimant's contribution to the separation. All monetary claims were dismissed as unproved or statute-barred, and the Certificate of Service prayer was held spent, the court finding the Claimant had acknowledged receipt on 31st August 2018. Each party was ordered to bear its own costs, with interest on the award from the date of judgment.

Key legal issues

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01

Substantive fairness of termination

Holding

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

Reasoning

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.

p. 9
02

Procedural fairness

Holding

Termination was procedurally unfair because the show-cause notice and disciplinary hearing were issued and held on the same day

Reasoning

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.

p. 11
03

Compensation for unfair termination

Holding

One month's basic salary (KShs.12,588) awarded under section 49(1)(c) given the Claimant's contribution to the termination

Reasoning

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.

p. 12
04

Limitation on historical monetary claims

Holding

House allowance, public holiday and leave claims accruing outside the limitation period were statute-barred

Reasoning

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.

p. 14
05

Certificate of Service

Holding

The certificate was issued and received on 31st August 2018 as acknowledged by the Claimant in his own handwriting

Reasoning

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.

p. 16

Legal principles established

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  • 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

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  1. 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. 2.The Claimant awarded KShs.12,588, equivalent to one month's basic salary, as compensation for procedural unfairness
  3. 3.The claims for unpaid October salary, salary in lieu of notice, house allowance, public-holiday pay and outstanding leave dismissed
  4. 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. 5.Interest on the awarded sum at court rates from the date of Judgment until payment in full
  6. 6.Each party to bear its own costs
Jurisdiction invoked
Employment and Labour Relations jurisdiction of the Magistrates Court (MCELRC Cause)

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, "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.