Wekesa v Fidelity Security Limited (Cause 1939 of 2017) [2023] KEELRC 585 (KLR)
The bottom line
#A Kenyan court upheld a security guard's dismissal, confirming employers win when they prove both a valid reason and fair disciplinary process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's contract of employment was lawfully terminated
- 2.Whether the parties are entitled to the reliefs sought in their pleadings
Key legal issues
#Whether the Respondent had a valid reason to terminate the Claimant's employment
Yes - gross misconduct (negligence or complicity in attempted theft) was established.
The court credited the Respondent's evidence that the Claimant and his co-guard were required to search garbage bags at the staff gate and failed to do so, allowing wine bottles to be smuggled out. The Claimant's contradictory accounts on this point undermined his credibility. This gave the Respondent genuine grounds to believe misconduct had occurred under section 44.
Whether the termination followed fair procedure under section 41 of the Employment Act
Yes - the Claimant was notified of the accusations, gave a written response and attended disciplinary sessions with a shop steward.
The court held the law does not prescribe a specific format for disciplinary sessions; the employer need only notify the employee of the accusation and allow an unhindered response with a representative. The Claimant's self-recorded statement of April 16, 2015 showed he knew the accusations, and he attended meetings with shop stewards including Ezekiel Wanyama.
Legal principles established
#- Under sections 43 and 45 of the Employment Act, an employer must prove both a valid and fair reason and fair procedure; absent either, the termination is unfair.
- The reasonableness of an employer's decision to dismiss falls to be assessed under the range of reasonable responses test, not by substituting the tribunal's own view.
- Even a summary dismissal for gross misconduct under section 44 must be preceded by the procedural safeguards in section 41 of the Employment Act.
Court orders
#- 1.The case is dismissed
- 2.Costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, sections 41, 43, 44, 45 and 47)
Relief refused
#Compensation for unfair termination of the contract of service
The court found the Respondent had a valid reason for termination and followed due process; the claim lacked merit.
Costs
Costs awarded to the Respondent
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.
Accordingly, the case is dismissed with costs to the Respondent.
The court finds that the Respondent had valid reason to terminate the Claimant's employment and that the contract of service between the parties was terminated in accordance with due process.
Where termination of employment has happened, the employer bears the burden of justifying the validity of the decision to terminate in terms of sections 43 and 47 of the Employment Act.
These contradictions can only mean one thing: that the Claimant was being less than candid on this matter.
Issues in the judgment
#Inconsistent dates for the incident and meetings within the judgment
Further contradictory dating of the incident and attendance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa v Fidelity Security Limited (Cause 1939 of 2017) [2023] KEELRC 585 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/585/eng@2023-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.