Kibet v G4S Kenya Limited (Employment and Labour Relations Appeal E145 of 2022) [2023] KEELRC 1776 (KLR)
The bottom line
#Kenya's Employment Court upheld a security guard's dismissal, confirming employers only need genuine, reasonably held reasons and can deduct losses from terminal dues.
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 respondent proved that it had a justifiable reason to terminate the appellant's employment
- 2.Whether the dismissal of the appellant was in line with fair procedure
- 3.Whether the remedies sought by the appellant lie in law
Key legal issues
#Justifiable reason for termination
The respondent had a reasonable and sufficient reason to terminate the appellant on account of negligence of duty following theft at the site he guarded.
Sections 43(1) and 45(2) of the Employment Act place the burden on the employer to prove valid reasons. Following KRA v Reuwel Waithaka Gitahi, the employer need only prove reasons it genuinely believed to exist on a balance of probability. Theft of drain covers occurred on the appellant's night shift; he failed to detect it, was unaware of the drain covers, and his absence from the workstation contributed to the loss, which the respondent had to reimburse.
Procedural fairness under section 41
The respondent complied with section 41: the appellant was notified of the allegations, attended the hearing, made representations, and was accompanied by shop stewards.
Section 41(1) requires notification of allegations in a language the employee understands, an opportunity to respond, and accompaniment by a fellow employee or union representative. The appellant received a notice stating date, venue and time, tendered a written statement, was accompanied by two shop stewards, and even pursued an internal appeal. Applying Postal Corporation of Kenya v Andrew K Tanui, all four elements were met.
Remedies
None of the remedies sought lay: notice pay and compensation failed as the dismissal was lawful; the 12-year leave claim was barred by section 28(4); and the respondent was entitled to surcharge the appellant's dues for the replacement costs.
Having found the termination substantively and procedurally fair, notice pay and compensatory damages fall away. Terminal dues already included outstanding leave, and section 28(4) limits recoverable leave to 18 months. The negligence caused the respondent to reimburse its client for the stolen drain covers, justifying recovery from the appellant's dues.
Legal principles established
#- On a first appeal, the court must re-evaluate the evidence and draw its own independent conclusions.
- In employment disputes the employer need only prove the reasons it genuinely believed to exist, on a balance of probability.
- Under section 28(4) of the Employment Act, leave claims are limited to leave accruing within 18 months of the exit.
- An employer whose employee's negligence caused a client loss may surcharge the employee's terminal dues to recover that loss.
Court orders
#- 1.The Appeal is dismissed in its entirety
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Milimani (ELRC)
- ELRC No 8 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court (ELRC jurisdiction under the Employment Act and the ELRC Act)
Relief refused
#One month's salary in lieu of notice and compensation for unfair termination
The court found the dismissal was neither unfair nor unlawful
Accrued leave for 12 years
Terminal dues already included outstanding leave and section 28(4) caps recoverable leave at 18 months preceding exit
Service pay for 12 years and unpaid salary for 17 days
No relief was due as the termination was lawful and the respondent was entitled to surcharge the appellant's dues for the loss
Costs
No orders as to costs - each party to bear own costs
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.
It is against this background that that I dismiss the Appeal in its entirety and make no orders as to costs.
In total sum, I find that the appellant's dismissal was not unfair and unlawful.
the respondent only needed to prove that that the reasons for the appellant's dismissal, are those reasons it genuinely believed to exist at the time.
The respondent was therefore within its right to recover the amount spent in replacing the stolen drain covers from the appellant's dues.
the appellant's claim for unpaid leave dating back to 12 years prior to his dismissal is unsustainable.
Issues in the judgment
#The judgment repeatedly refers to the appellant as 'the respondent' in the analysis of the dismissal letter and grounds
Typographical/self-contradictory phrase in the reliefs analysis
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibet v G4S Kenya Limited (Employment and Labour Relations Appeal E145 of 2022) [2023] KEELRC 1776 (KLR)", Case Analysis (2023). ELRC Appeal from Chief Magistrate's Court at Milimani ELRC No 8 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1776/eng@2023-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.