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ELRCDismissedMilimani Chief Magistrate ELRC Cause E965 of 2020 (Appeal)

Kati v G4S Kenya Lmited (Employment and Labour Relations Appeal E219 of 2022) [2024] KEELRC 200 (KLR)

Employment and Labour Relations Court
9 February 2024
3,509 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed G4S fairly dismissed a cashier over a robbery confession, so his compensation claim failed.

What this practically means

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Executive summary

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The Appellant, a cashier with the Respondent security company, was summarily dismissed on 4th November 2019 on grounds that he aided and abetted a robbery in which the Respondent's staff lost about Kshs 74.48 million. His claim before the Chief Magistrate's Court at Milimani for a declaration of unlawful dismissal, terminal dues and Kshs 905,853 in damages was dismissed on 14th November 2022, with each party bearing its own costs. On appeal, the ELRC reconsidered the evidence afresh as a first appeal. The Court applied Section 43 and 45 of the Employment Act and the Court of Appeal's standard-of-proof holding in Kenya Revenue Authority v Reuwel Waithaka Gitahi, finding the employer only needed to prove reasons it genuinely believed to exist on a balance of probability. The Appellant's confession to police that he was promised Kshs 500,000 by the robbers for intelligence undermined the trust essential to his role as cashier. His allegation that the confession was procured by torture was unsupported, the referenced medical report being absent from the record. On procedure, the Court found the disciplinary enquiry complied with Section 41 of the Act: he received notice of the allegations, was heard, and was accompanied by a representative. The gratuity claim failed because the Protective Security Services Order does not cover cashiers and bars gratuity for lawful summary dismissal. The appeal was dismissed in its entirety, with each party bearing its own 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 valid and fair reason to terminate the Appellant's employment
  2. 2.Whether the termination of the Appellant's employment 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

Valid and fair reason for termination

Holding

The Respondent proved a valid and fair reason; the Appellant's confession regarding involvement in the robbery destroyed the trust required of a cashier

Reasoning

Section 43(1) and 45(2)(a) of the Employment Act place the burden on the employer to prove reasons for termination. Applying the balance-of-probability standard and the McKinley test on dishonesty, the Court found it more than probable that the Respondent genuinely believed it could no longer trust the Appellant as its cashier following his confession to police, which went to the root of the employment relationship.

p. 6
02

Procedural fairness of the termination

Holding

The termination complied with Section 41 of the Employment Act; the Appellant was notified of the allegations and given a hearing with representation

Reasoning

The Appellant was suspended on 24th October 2019 and issued a Notice of Disciplinary Enquiry stating the allegations and his rights. At the hearing on 29th October 2019 he was accompanied by a representative, allowed to state his case, mitigate, and call and question witnesses. He did not dispute the minutes of the hearing at trial.

p. 7
03

Alleged duress/torture behind the confession

Holding

The Appellant failed to substantiate the torture allegation; the medical evidence relied on did not disclose the nature of illness

Reasoning

The Appellant claimed his confession was procured by police torture but had no evidence of torture; the medical report he referenced was not on record, and the sick sheets exhibited did not disclose the nature of his illness, so they did not corroborate the torture claim.

p. 5
04

Entitlement to gratuity

Holding

The gratuity claim fails because the Appellant was a cashier, outside the scope of the Protective Security Services Order, and had been summarily dismissed for lawful cause

Reasoning

Regulation 17 of Legal Notice No. 24 of 1998 applies only to security guards, investigators and escorts of valuables. A cashier falls outside these categories, and Regulation 17(2) bars gratuity to employees summarily dismissed for lawful cause.

p. 7

Legal principles established

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  • The standard of proof in employment termination cases is on a balance of probability, and the employer need only prove reasons it genuinely believed to exist
  • Dishonesty justifying dismissal is assessed by whether it leads to a breakdown of the employment relationship, particularly where trust is essential

Court orders

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  1. 1.The appeal fails and is dismissed in its entirety
  2. 2.Each party to bear their own 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 Cause E965 of 2020
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Employment and Labour Relations Court jurisdiction

Relief refused

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Setting aside the trial Court's judgment dismissing the claim; declaration of unfair dismissal and compensation/terminal dues

No finding of unfair termination; Respondent had valid reason and followed fair procedure

p. 7

Claim for gratuity

The Appellant, a cashier, falls outside the categories in the Regulation of Wages (Protective Security Services) Order and was summarily dismissed for lawful cause

p. 7

Costs

Each party will bear their 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.

Ultimately, I find no reason to cause me to overturn the decision by the learned Trial Magistrate. Accordingly, the instant Appeal fails and is dismissed in its entirety.
p. 7Disposition - dismissal of appeal
Each party will bear their own costs.
p. 7Costs
the standard of proof required is on a balance of probability and not beyond reasonable doubt, and all the employer is required to prove are the reasons that it “genuinely believed to exist,” causing it to terminate the employee's services.
p. 5Standard of proof in termination cases
Being a first appeal, this Court has a duty to reconsider the evidence, evaluate it and draw its own conclusion but making allowance for the fact that it has not seen or heard the witnesses.
p. 4Duty of first appellate court

Issues in the judgment

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minor

The amount stolen is inconsistently stated as Kshs 74,480,000.00 in the narrative and Kes 74,483,000 in the quoted dismissal letter

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, "Kati v G4S Kenya Lmited (Employment and Labour Relations Appeal E219 of 2022) [2024] KEELRC 200 (KLR)", Case Analysis (2024). Milimani Chief Magistrate ELRC Cause E965 of 2020 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/200/eng@2024-02-09

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