Thomas Shikuku Wanyonyi v K.K. Security Limited [2015] KEELRC 58 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal
The dismissal was procedurally fair; the Claimant had notice of the charges, an oral hearing, and union representation
Section 41 of the Employment Act, 2007 requires procedural fairness before termination. The Claimant received a Notice to Attend Disciplinary Hearing dated 1 July 2013, was heard orally, had shop floor union representatives present, and both he and his representative signed the summary of the proceedings. The requirements of section 41 were therefore satisfied.
Substantive fairness of the dismissal
The dismissal was substantively fair; sleeping on duty at night as a guard breached the expectations of the role
The Respondent discharged its burden through the Supervisor who found the Claimant asleep and had previously done so, an incident report, a Summons Note, and evidence of prior disciplinary conduct including warning letters. Falling asleep at a night guard post at Raiplywoods Ltd Eldoret breached the client expectation of alertness and the Claimant's own knowledge of his duties, meriting summary dismissal under section 44.
Validity of contract clause 6B permitting termination on notice
The court found such a provision would be invalid, but the point was overtaken by the finding that the termination was fair
The Claimant sought a declaration that clause 6B was unconstitutional or in breach of the Employment Act. The court held that no employer governed by the Act may terminate without reasons, so a clause permitting termination on notice alone would be invalid. However, the primary finding was that the termination was in fact fair, and the memorandum of claim was dismissed.
Legal principles established
#- An employer must comply with procedural fairness under section 41 of the Employment Act before terminating employment
- A contractual provision permitting termination without reasons would be invalid for failing to meet the statutory standard under the Employment Act
- The reasons meriting summary dismissal under section 44 amount to fundamental breach of an employee's contractual obligations
- An NSSF contributor is not entitled to service pay under section 35(5) and (6) of the Employment Act
Court orders
#- 1.That the termination of the Claimant's employment was fair
- 2.That the Memorandum of Claim filed in Court on 23 January 2014 be dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (specific Article not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Shikuku Wanyonyi v K.K. Security Limited [2015] KEELRC 58 (KLR)", Case Analysis (2015). Cause No 15 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/58/eng@2015-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.