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ELRCDismissedELRC Appeal from Chief Magistrate's Court at Milimani ELRC No 8 of 2020

Kibet v G4S Kenya Limited (Employment and Labour Relations Appeal E145 of 2022) [2023] KEELRC 1776 (KLR)

Employment and Labour Relations Court
14 July 2023
3,183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant, a dog handler employed by the respondent from December 2007 until his summary dismissal on April 17, 2019, sued at the Chief Magistrate's Court at Milimani (ELRC No 8 of 2020) seeking Kshs 906,537.06 comprising notice pay, 17 days' unpaid salary, accrued leave and service pay for 12 years, and compensation for unfair termination contrary to article 41 of the Constitution. His claim was dismissed on July 29, 2022, prompting this appeal on three grounds attacking the magistrate's findings on liability and fairness. Stella Rutto J, as the first appellate court, re-evaluated the evidence and framed three issues: justifiable reason, procedural fairness, and remedies. On substance, the court held that following Kenya Revenue Authority v Reuwel Waithaka Gitahi, the employer need only prove the reasons it genuinely believed to exist on a balance of probability. Theft of drain covers occurred on the appellant's night shift at the Commonwealth war graves site; he failed to detect it, was unaware of the covers, and allegedly left his post, causing the respondent to reimburse its client. On procedure, applying Postal Corporation of Kenya v Andrew K Tanui, the court found section 41 of the Employment Act complied with: the appellant was notified, heard, represented by shop stewards, and granted an internal appeal. On remedies, the 12-year leave claim failed under section 28(4), and the respondent was entitled to surcharge his terminal dues for the replacement costs. The appeal was dismissed in its entirety with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the respondent proved that it had a justifiable reason to terminate the appellant's employment
  2. 2.Whether the dismissal of the appellant was in line with fair procedure
  3. 3.Whether the remedies sought by the appellant lie in law

Key legal issues

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01

Justifiable reason for termination

Holding

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.

Reasoning

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.

p. 5
02

Procedural fairness under section 41

Holding

The respondent complied with section 41: the appellant was notified of the allegations, attended the hearing, made representations, and was accompanied by shop stewards.

Reasoning

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.

p. 6
03

Remedies

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Appeal is dismissed in its entirety
  2. 2.No orders as to costs

The bench

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

majority

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

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One month's salary in lieu of notice and compensation for unfair termination

The court found the dismissal was neither unfair nor unlawful

p. 6

Accrued leave for 12 years

Terminal dues already included outstanding leave and section 28(4) caps recoverable leave at 18 months preceding exit

p. 6

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

p. 7

Costs

No orders as to costs - each party to bear own costs

Quotable passages

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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.
p. 7Final orders - dismissal of appeal
In total sum, I find that the appellant's dismissal was not unfair and unlawful.
p. 6Overall finding on termination
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.
p. 4Standard of proof for employer's reasons
The respondent was therefore within its right to recover the amount spent in replacing the stolen drain covers from the appellant's dues.
p. 6Surcharge of terminal dues
the appellant's claim for unpaid leave dating back to 12 years prior to his dismissal is unsustainable.
p. 6Limitation on leave claims

Issues in the judgment

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minor

The judgment repeatedly refers to the appellant as 'the respondent' in the analysis of the dismissal letter and grounds

minor

Typographical/self-contradictory phrase in the reliefs analysis

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.