Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment text

Kenya National Private Security Workers Union v BOB` Morgan Services Limited (Cause 1627 of 2017) [2022] KEELRC 4130 (KLR)

Employment and Labour Relations Court
30 September 2022
2,751 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled Kenya Breweries unfairly sacked a security guard, awarding him six months' salary because it gave him only two hours to respond and no representation.

What this practically means

#

Executive summary

#
The claimant union sued on behalf of its member, Edward Luttah Ambutsi (the grievant), a security officer of the respondent, seeking Kshs 210,000.00 as compensatory damages for unfair termination effected on July 8, 2016 after a two-day absence from work. The grievant testified that his house burnt down and that the respondent's field officer, Daniel Langat, cleared him for two days' leave, evidenced by a dispatch note; on reporting back he was issued a show cause letter giving him only two hours to respond, then subjected to a disciplinary hearing at which he was denied representation and an opportunity to speak, before termination. The respondent maintained that the grievant absconded duty and was inciting staff at Electricity House, that the dispatch note was inauthentic, and that the disciplinary process was fair, noting he was paid one month's salary in lieu of notice and gratuity for 17 years. The court isolated two issues: fairness and lawfulness of the termination, and entitlement to reliefs. On substantive fairness, it found the grievant had proved on a balance of probability that he was authorised to be away, the authenticity challenge having been raised late and unsupported; it also observed that the alleged incitement was the 'reason behind the reason'. On procedural fairness, the respondent failed to prove the grievant was offered or waived representation, and the two-hour response period was unreasonable. Following Patrick Abuya v ICPAK, the court held the termination substantively and procedurally unfair, and awarded six months' gross salary, Kshs 105,000.00, with interest at court rates from the date of judgment and costs to the claimant.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the grievant's termination was fair and lawful
  2. 2.Is the grievant entitled to the reliefs sought?

Key legal issues

#
01

Whether the respondent proved a valid and fair reason for termination (substantive fairness)

Holding

The respondent failed to prove that the grievant was absent without permission; the grievant proved on a balance of probability that he was authorised to be away for two days

Reasoning

The grievant produced a dispatch note dated June 30, 2016, signed by field officer Daniel Langat, clearing him for two days. The respondent challenged the note's authenticity only in cross-examination, not in its defence or RW1's testimony in chief, and produced no statement or affidavit from Langat disowning it. The disciplinary proceedings also recorded Langat admitting he filled the form. The court therefore found the dismissal reason unproved.

p. 4
02

Whether the disciplinary process met the procedural fairness requirements of sections 41(1) and 45(2)(c) of the Employment Act

Holding

The termination was procedurally unfair: representation was not offered, and the grievant had only two hours to respond to the show cause letter

Reasoning

Although the grievant received and answered a show cause letter and attended a hearing, RW1 admitted he was unrepresented, and no invitation allowing a representative was exhibited, nor any waiver recorded. The two-hour deadline to respond was unreasonable where the employee's livelihood was at stake. Following Patrick Abuya v ICPAK, the process fell short of the statutory threshold.

p. 5
03

Whether the grievant was entitled to the reliefs sought, namely 12 months' salary as compensatory damages

Holding

Compensatory damages of six months' gross salary (Kshs 105,000.00) awarded, being half of the 12 months claimed

Reasoning

Having found both substantive and procedural unfairness, the court exercised its discretion under section 49 of the Employment Act framework and awarded six months' gross salary rather than the maximum 12 months sought, entering judgment for Kshs 105,000.00 with interest and costs.

p. 6

Legal principles established

#
  • An employer must prove both substantive and procedural fairness to sustain a termination; failure to prove the reason renders the termination unfair
  • An employer bears the burden of proving procedural fairness, including that an employee was offered and waived or refused representation at a disciplinary hearing
  • A two-hour period to respond to a show cause letter is unreasonable and offends procedural fairness

Court orders

#
  1. 1.Judgment entered in favour of the claimant against the respondent
  2. 2.The grievant awarded compensatory damages of Kshs 105,000.00, equivalent to six months of his gross salary
  3. 3.Interest on the award at court rates from the date of judgment until payment in full
  4. 4.The respondent to bear the costs of the suit

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
First-instance jurisdiction under the Employment and Labour Relations Court Act over a claim for compensatory damages for unfair termination under the Employment Act, 2007

Relief refused

#

Compensatory damages of Kshs 210,000.00 (12 months' gross salary) as sought

The court, in its discretion, awarded only six months' gross salary instead of the 12 months claimed

p. 6

Costs

The respondent shall bear the costs of the suit.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In order to prove that an employee's termination was fair and lawful, an employer has to satisfy two limbs, that is substantive and procedural fairness.
p. 3Twin limbs of fairness in termination
I am of the view that the subtle reason for the grievant's termination was his alleged incitement of stafi at Electricity House. That was the real trigger. It was the reason behind the reason.
p. 4Undisclosed real reason for termination
By all means, the period of two hours was quite unreasonable, noting that the grievant's job was on the line. In actual sense, the respondent did not stand to loose anything by allowing the grievant a reasonable time to answer to the show cause letter.
p. 5Unreasonable time to respond to show cause letter
To this end, Judgment is entered in favour of the claimant against the respondent and the grievant is awarded compensatory damages in the sum of Kshs 105,000.00 which sum is equivalent to six (6) months of his gross salary. Interest shall apply on the award at court rates from the date of Judgement until payment in full.
p. 6Final orders and award

Issues in the judgment

#
minor

Internal contradiction in dates: the claim avers employment commenced in November 2017, yet the termination is pleaded and found to have occurred in July 2016

minor

The judgment records the grievant's testimony of meetings on '7th August(sic) 2016' and '8th August (sic) 2016', whereas the termination letter and defence place the disciplinary hearing on July 6, 2016 and termination on July 8, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Private Security Workers Union v BOB` Morgan Services Limited (Cause 1627 of 2017) [2022] KEELRC 4130 (KLR)", Case Analysis (2022). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4130/eng@2022-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.