Lavington Security Guards Ltd v Maroa

3. 5. The Learned Magistrate erred in law and in principle in making an award for Kshs. 186,840.00 for overtime for 3 years including the days the Respondent was on leave, which is excessive, unjust, amounts to double compensation and is not supported by law or any evidence. 6. The Learned Magistrate erred in law and in principle when she applied a wrong formula in calculating the award for the days worked during public holidays and as a result arrived at an award of Kshs. 410,000.00 which was excessive, erroneous, exorbitant and punitive. 7. The Learned Magistrate erred in law and in fact by ignoring the submissions of the Appellants’ Advocates and heavily relying on the submissions of the Respondent’s Advocate showing outright bias. 8. The Learned Magistrate erred in law and in fact by failing to apply the applicable law both statutory and precedents which were placed before her and ignored the Appellant’s case particularly the evidentiary and legal material presented. The Appellant prays for orders that; a. This appeal be allowed and the judgment and decree of the trial court dated and delivered on 18th October 2024 be overturned, reviewed and/or set aside. b. Costs of the Appeal be awarded to the Appellant. 4. The Appellant’s case before the trial court was presented through the following documents, all of which form part of the Record of Appeal: a Memorandum of Claim dated 7th August, 2019, a witness statement by Claimant, a List and Bundle of Documents, and written submissions led at the trial court. In this court, the Appellant led written submissions dated 12th March, 2025. 5. The Appellant’s case is that the Respondent herein was their employee as a night security guard from 9th November, 1999. He served in that capacity at various assignments until 25th May, 2018 earning a monthly salary of Kshs. 13,500.00 at the time of his dismissal. The Respondent worked on twelve (12) hour night shifts from 1800 hours to 600 hours and was entitled to one rest day per week. 6. On 25th May, 2018 the Respondent was on duty at Sandalwood Apartments along Gitanga Road, Lavington Estate in Nairobi when a burglary incident was alleged to have occurred at the premises he was guarding. The Appellant contends that the Respondent failed to discharge his duties as expected in that his conduct could have prevented the incident and that the incident was reported to Muthangari Police Station vide OB No. 26/25/5/2018. Following the incident, the Respondent did not report to work or communicate with the Appellant. 7. The Appellant further contends that the Respondent was summoned together with his colleagues to record statements on what had transpired on that night but the Respondent did not honour the summons and did not appear at the place of work for seven consecutive days, without permission and without communication. This was contrary to the law and the company’s code of conduct. The Respondent appeared at the Appellant’s oces on 9th June 2018, whereupon he was served with a dismissal letter dated 7th June 2018. The grounds for dismissal stated in that letter were that the Respondent was on reasonable grounds suspected of having committed a criminal oence and secondly, that he absented himself from duty without permission as from 25th May, 2018. 8. The Appellant avers that the Respondent was compensated for extra hours worked by receiving one day o per week and that he was entitled to one day o if he worked during public holidays. The Respondent utilized all his annual leave entitlement from the year 1999 by the time of his dismissal. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1998/eng@2026-07-15 2

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The Appellant produced a leave application form conrming that the Respondent applied for and took leave for the year 2016 and 2017. 9. In the circumstances of this case, the Appellant submits that the trial court made conicting ndings, having at one point held that the reasons for termination had been proved and thereafter holding that they were not valid, which renders the judgment unsound in principle. The Appellant further submits that since the Respondent deserted duty and repudiated his contract of employment, he was not entitled to salary in lieu of notice. 10. On the quantum of the awards, the Appellant contends that the award of 10 months’ salary as damages for unlawful termination is inordinately high and excessive in the circumstances, relying on the Court of Appeal decision in Cargill Kenya Limited v Mwaka & 3 Others (Civil Appeal No. 54 of 2019) [2021] KECA 115 (KLR) where the Court of Appeal held that compensation of 8 months’ salary for the 1st respondent and 6 months’ salary for the 2nd, 3rd and 4th respondents was on the excessive side and substituted each with an award of 4 months’ salary. 11. On the overtime award, the Appellant submits that the Respondent did not lead any substantive evidence to prove that he worked overtime, that no records were presented to demonstrate the time he logged in or logged out each day and that the Respondent’s claim that he worked every day including weekends and public holidays was an overreach that was not proved by documentary evidence. The Appellant’s witness testied that the Respondent was compensated for extra hours through a day o per week and that the Respondent also received a day o where he worked on public holidays. 12. On pay in lieu of public holidays, the Appellant submits that the trial court applied a wrong formulae. According to the Regulation of Wages (General) Order Legal Notice No. 112 of 2017 at pages 41 and 42 of the Record of Appeal, the applicable daily rate for Nairobi is Kshs. 622/- and the hourly rate is Kshs. 115.5/-. Regulation 6(1)(b) of the Order provides that work done on a public holiday is payable at twice the normal hourly rate. The correct computation is: 10 public holidays x (2 x 115.5 x 8 hours) = Kshs. 18,480.00 per year, multiplied by 3 years = Kshs. 55,440.00, which is far below the award of Kshs. 410,000.00 made by the trial court. 13. The Respondent’s case before the trial court was presented through the following documents, all of which form part of the Record of Appeal, a Witness Statement of Charles Nyasuni Maroa, a List and Bundle of Documents and written submissions led at the trial court. At the hearing before this court, the Respondent led written submissions dated 5th May, 2025. 14. The Respondent’s case as presented across these documents is as follows: The Respondent was employed by the Appellant as a night security guard from November, 1999 and served without any disciplinary complaint or incident throughout the entire duration of his employment until the events of May, 2018. On the night of 24th /25th May, 2018 the Respondent reported to work at Sandalwood Apartments along Gitanga Road and took over duty from the day guards. He was briefed on the day’s activities and assumed his post. He testied that no theft or burglary occurred or was reported to him or his colleagues during that night and that he handed over in good order to the morning shift. 15. At around 1100 hours on 25th May, 2018 the Respondent received a call from his supervisor informing him that a complaint had been lodged that some property had gone missing from Apartment A6. The Respondent informed the supervisor that no such complaint or report had been made to him or the other night guards during their shift. The supervisor then told him not to report to work until the matter was fully investigated. The Respondent was never summoned to appear formally, informally or otherwise for any disciplinary hearing or fact-nding process. He wrote a letter dated 28th May, 2018 addressed to the Operations Manager, Lavington Security Guards Limited in which he clearly explained his account of the events of the night in question, stated that he had handed over in good https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1998/eng@2026-07-15 3

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order and denied any knowledge of or involvement in any theft or burglary. This letter was received at the Appellant’s oces. 16. On 9th June, 2018 the Respondent was called to the Appellant’s oces, where he was surprised to be handed a dismissal letter dated 7th June, 2018. He had not been given any notice of the charges against him, had not been informed that termination of his employment was being considered and had not been accorded any hearing or an opportunity to respond to the allegations against him. He had never been charged with any criminal oence in connection with the alleged burglary. He had presented himself to Muthangari Police Station and was informed that there was no case against him. 17. In his Written Submissions before the trial court, the Respondent submitted that the two grounds stated in the dismissal letter — reasonable suspicion of criminal conduct and absenteeism without permission were both of which were without foundation. On the criminal oence ground, the Appellant’s own witness, Samuel Obanda, conceded in cross-examination that the issue was reported to the police, that to date he does not know the outcome of the investigations and that the Appellant never followed these up with the police. The Respondent was never charged in court. On the absenteeism ground, the same witness conceded that the Respondent had absented himself with permission, directly contradicting the dismissal letter’s assertion of absence without permission. 18. The Respondent further submitted that Section 41 of the Employment Act, 2007, which mandates notice and hearing before termination, was never complied with. He relied on the celebrated authority of Mary Chemwemo Kiptui v Kenya Pipeline Company Limited [2014] eKLR where the court held that Section 41 is expressed in mandatory terms, that whatever reason or reasons that arise to cause an employer to terminate an employee, that employee must be taken through the mandatory process outlined under Section 41 and that failure to do so renders the termination invariably unfair. 19. On the quantum of the awards, the Respondent submits that the trial court was correct in all heads of award. On the public holiday award, the Respondent submits that the Appellant’s alternative computation is wrong in two respects: it applies the hourly rate of Kshs. 115.5 which is the rate for a day watchman, whereas the Respondent was a night watchman attracting the higher prescribed rate of Kshs. 130.05 per the 2017 Wage Order; and it uses 8 hours per day whereas the Respondent’s admitted working shift was 12 hours. On the overtime award, the Appellant’s own witness admitted in crossexamination that the Respondent’s working hours were from 6.00 pm to 6.00 am, amounting to 12 hours daily and that the Respondent was never paid for daily overtime. The Respondent submits that the trial court correctly limited the overtime claim to 3 years pursuant to Section 90 of the Employment Act, 2007 and that the award of Kshs. 186,840.00 is properly computed. 20. On damages for unlawful termination, the Respondent submits that the award of 10 months’ salary appropriately reects the Respondent’s long and unblemished service of approximately 18 years and 8 months with the Appellant and that the trial court properly considered the Respondent’s length of service in arriving at that gure. The Respondent urges this court to dismiss the appeal in its entirety with costs. The issues for determination are: 1. Whether the trial court erred in nding that the Appellant failed to prove valid reasons for the termination of the Respondent’s employment. 2. Whether the trial court erred in holding that the termination of the Respondent’s employment was not procedurally fair. 3. Whether the Respondent is entitled to the reliefs awarded by the trial court. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1998/eng@2026-07-15 4

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4. Who bears the costs of this appeal. 21. The 1st issue for determination is whether the trial court erred in nding that the Appellant failed to prove valid reasons for the termination of the Respondent’s employment. Here, Section 43(1) of the Employment Act, 2007 places the burden on the employer to prove the reason or reasons for the termination, failing which the termination shall be deemed unfair within the meaning of Section 45. The dismissal letter dated 7th June, 2018 cites two grounds, that the Respondent was on reasonable grounds suspected of having committed a criminal oence and that he absented himself from duty without permission as from 25th May, 2018. 22. On the rst ground, the Appellant’s own witness conceded in cross-examination that the matter was reported to the police, that the outcome of the investigations is unknown to date and that there was no follow-up with the police. The Respondent was never charged with any criminal oence. Mere suspicion, standing alone and unsubstantiated by any investigation or prosecution, cannot constitute a valid reason for summary dismissal. On the second ground, the same witness conceded that the Respondent had absented himself from duty with permission, which directly contradicts the dismissal letter. This court nds that the trial court was correct in holding that the Appellant failed to prove the reasons for termination. This issue is resolved in favour of the Respondent. This pursues the thinking and ratio in Selle and Another v Associated Motor Boat Co. Ltd [1968] EA 123 on the standard of review on a rst appeal. 23. The 2nd issue for determination is whether the trial court erred in holding that the termination of the Respondent’s employment was not procedurally fair. Section 41(1) of the Employment Act, 2007 mandates that before terminating the employment of an employee on grounds of misconduct, an employer shall explain to the employee in a language the employee understands the reason for which termination is being considered, and the employee shall be entitled to have another employee or a union representative present. Section 41(2) extends this obligation to summary dismissal. 24. The evidence before the trial court was unambiguous: no disciplinary notice was issued, no hearing was conducted, the Respondent’s written explanation was received and completely disregarded, and the Respondent was handed a dismissal letter without any prior process. In Mary Chemwemo Kiptui v Kenya Pipeline Company Limited [2014] eKLR, this court held that Section 41 is couched in mandatory terms, that whatever reason or reasons that arise to cause an employer to terminate an employee that employee must be taken through the mandatory process as outlined under Section 41, and that the situation is dire where such an employee is terminated after such a awed process without a hearing as such termination is ultimately unfair. That principle applies squarely to the facts of this case. The termination of the Respondent’s employment was unlawful, unfair and wrongful. 25. The 3rd issue for determination whether the Respondent is entitled to the reliefs awarded by the trial court. The trial court in the circumstances assessed these reliefs under Sections 49 and 50 of the Employment Act, 2007. This comes out as follows; 26. On salary in lieu of notice, the Appellant’s challenge is premised on the Respondent having absconded duty. That premise has been rejected above. The Respondent is entitled to one month’s salary in lieu of notice. The award of Kshs. 13,500.00 is sustainable and hereby conrmed. 27. On damages for unlawful termination, the Appellant relies on Cargill Kenya Limited v Mwaka & 3 Others [2021] KECA 115 (KLR) to argue that 10 months’ salary is excessive. The Cargill decision arose from redundancy dismissals involving materially dierent circumstances and service periods. In this matter the Respondent served the Appellant for approximately 18 years and 8 months as a night security guard without any prior disciplinary incident, was dismissed on grounds that the Appellant https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1998/eng@2026-07-15 5

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entirely failed to substantiate and was denied any opportunity whatsoever to be heard. The award of 10 months’ salary is within the statutory ceiling of 12 months under Section 49(1)(c) and is amply justied on the facts. The award of Kshs. 135,000.00 is too, conrmed. 28. On annual leave, the trial court found that while the Appellant produced evidence of leave taken for 2016, no evidence was tendered to conrm that the Respondent took his leave for the year 2017. The documentary evidence produced by the Appellant covers 2016. The bare assertion by the Appellant’s witness that all leave was utilized is not sucient to establish utilization for the specic year 2017. The award of Kshs. 13,500.00 is conrmed. 29. On overtime, the Respondent worked 12-hour night shifts, a fact admitted by the Appellant’s own witness. The Regulation of Wages (Protective Security Services) Order, 1998 prescribes a normal working week of 52 hours spread over 6 days for all employees including night guards. The Respondent worked 72 hours per week, generating 20 overtime hours per week, payable at one and one-half times the normal hourly rate under Regulation 6(1)(a) of the Regulation of Wages (General) Order. The Appellant produced no records of overtime payment or compensatory time-o arrangements. Failure to keep proper employment records is weighed against the Appellant under Section 74 of the Employment Act, 2007. The claim is limited to 3 years under Section 90 of the Employment Act, 2007. The award of Kshs. 186,840.00 is conrmed. 30. On pay in lieu of public holidays, the Respondent was a night watchman and the applicable prescribed rate is the night watchman rate under the 2017 Wage Order, not the day watchman rate relied upon by the Appellant. The Respondent’s admitted working shift was 12 hours, not 8 hours. The trial court’s award of Kshs. 410,000.00 is also conrmed. 31. On underpayment, this head of award was not challenged in the Memorandum of Appeal. The award of Kshs. 81,900.00 comprising house allowance of Kshs. 72,900.00 and monthly wage underpayment of Kshs. 9,000.00 is sustainable and hereby conrmed. 32. This matter having fallen at out against the appeal, costs should ordinarily follow the events. The appeal having been dismissed in its entirety, costs of this appeal are awarded to the Respondent. 33. I am therefore inclined to dismiss the appeal and uphold and arm the judgments and decree of the trial court in the following terms; i. The Appellant shall pay to the Respondent the total sum of Kshs. 840,740.00 as awarded by the trial court, comprising: Salary in lieu of notice………………………………………..Kshs. 13,500.00 Damages for unlawful and unfair termination……………….Kshs. 135,000.00 Annual leave (2017)………………………………………..….Kshs. 13,500.00 Overtime (3 years)……………………………………………Kshs. 186,840.00 Pay in lieu of public holidays (3 years)………………………Kshs. 410,000.00 Underpayment (house allowance and wages)…………………Kshs. 81,900.00 Total of Award ………………………………………. Kshs. 840,740.00 ii. Interests at court rates from the date of this judgment of court till payment in full. iii. The costs of this appeal shall be borne by the Appellant. DELIVERED, DATED AND SIGNED THIS 15TH DAY OF JULY 2026. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1998/eng@2026-07-15 6

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D. K. NJAGI MARETE JUDGE Appearances: Mr. Kiptoon instructed by Kiptoon & Company Advocates for the Appellant. Mr. Mogire instructed by Mogire & Company Advocates for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1998/eng@2026-07-15 7

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