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ELRCPartially AllowedNot stated in the judgment text provided

Obachi v Gain Security Services (Cause 982 of 2018) [2023] KEELRC 3181 (KLR)

Employment and Labour Relations Court
5 December 2023
1,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a security guard over Kshs 225,000 because his employer fired him without reason, notice, or a hearing — and never defended the case.

What this practically means

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Executive summary

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This was an undefended first-instance employment claim before the Employment and Labour Relations Court at Nairobi, decided by Abuodha Nelson Jorum, J on 5th December 2023. The Claimant, employed as a night security guard and supervisor from 30th August 2011 at a final gross salary of Kshs 15,000, alleged summary dismissal on 10th January 2018 without notice, reason, warning or disciplinary hearing, compounded by being forcibly removed from company housing. The Respondent, despite service, did not enter appearance or file a response. The court framed two issues: whether the termination was unfair and unlawful, and whether the reliefs sought were payable. It found the employment relationship proved by a work identity card and Equity Bank statements, and held that the Respondent had neither given nor proved a valid and fair reason for termination as required by sections 43 and 45 of the Employment Act, nor complied with the notification and hearing requirements of section 41. Relying on Prof. Macha Isunde v Lavington Security Guards Ltd, Janet Nyandiko v Kenya Commercial Bank and Walter Anuro v Teachers Service Commission, the court found the dismissal substantively unjustified and procedurally flawed. One month's salary in lieu of notice and annual leave of Kshs 60,123 were awarded as prayed; compensation was reduced from the 12 months sought to 10 months (Kshs 150,000), reflecting 7 years of service and the Respondent's non-participation. The court awarded a total of Kshs 225,123 with costs to the Claimant, and directed issuance of a certificate of service under section 51.

Questions the Court framed

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

  1. 1.Whether the Claimant was unfairly and unlawfully terminated.
  2. 2.Whether the Claimant is entitled to the reliefs sought.

Key legal issues

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01

Whether the termination was substantively justified

Holding

Not justified - no valid and fair reason was given or proved.

Reasoning

The Respondent did not enter appearance, file a response or participate despite service. The Claimant, an employee of 7 years proven by work identity card and bank statements, was given no notice or warning and no reason for termination despite inquiring at the Respondent's offices. Section 43 places the burden on the employer to prove valid and fair reasons; failure renders termination unfair under section 45.

p. 4
02

Whether the termination was procedurally fair

Holding

Procedurally flawed and unfair under section 45 of the Employment Act.

Reasoning

The Claimant was never given notice, a warning, a show-cause letter or a disciplinary hearing as required by section 41 of the Employment Act. The Respondent declined to participate in the proceedings and so did not rebut these allegations. Following Janet Nyandiko and Walter Anuro, fairness requires both substantive justification and procedural fairness; both were absent here.

p. 4

Legal principles established

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  • The employer bears the burden of proving a valid and fair reason for termination; failure to do so renders the termination unfair.
  • Termination must be both substantively justified and procedurally fair.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs 15,000/=
  2. 2.Annual leave Kshs 60,123.00
  3. 3.Compensation for unfair and unlawful termination of 10 months' salary, Kshs 150,000/=
  4. 4.Total award of Kshs 225,123/= with costs to the Claimant
  5. 5.Certificate of service under section 51 of the Employment Act if not already given

The bench

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

Wrote the judgment

Jurisdiction invoked
First-instance employment claim under the Employment Act, 2007

Relief refused

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Compensation for wrongful and unfair termination of 12 months' salary

The court awarded 10 months instead, taking into account the 7 years of service and the Respondent's refusal to participate in the proceedings.

p. 4

Costs

Costs of the suit awarded to the Claimant.

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.

I am guided by Section 43 which requires the employer to prove the reason for termination; the reason must be valid and fair and if the employer fails prove so the termination shall be deemed unfair under Section 45 of the Act.
p. 4Burden of proving reason for termination
A mandatory and elaborate process is then set up under section 41 requiring notification and hearing before termination.
p. 4Procedural fairness under section 41 (Court of Appeal, cited)
In conclusion the Claimants’ claim is allowed as illustrated below with costs to the Claimant.
p. 4Disposition
a. One Month notice Kshs 15,000/= b. Annual Leave Kshs 60,123.00 c. 10 months Compensation for unfair and unlawful termination Kshs 150,000/= Total Kshs 225,123/=
p. 4Final orders
It is so ordered.
p. 5Closing order

Issues in the judgment

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minor

The claim's total in the statement of claim (Kshs 255,123.00) is arithmetically inconsistent with its components (15,000 + 60,123 + 180,000 = 255,123), so consistent; however the judgment's own award total is the same as its components (225,123). The date of delivery reads '5TH DAY DECEMBER, 2023' with missing 'OF'.

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, "Obachi v Gain Security Services (Cause 982 of 2018) [2023] KEELRC 3181 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3181/eng@2023-12-05

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