Kenya National Private Security Workers Union v KK Security Services Limited (Employment and Labour Relations Cause E039 of 2023) [2024] KEELRC 1701 (KLR)
The bottom line
#A Kenyan court upheld a security guard's dismissal for lateness and intoxication but ordered his employer to pay about Kshs 64,635 in unpaid dues plus costs.
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 dismissal of the grievant Nelson Maiyo was fair (in both reason and procedure)
- 2.Whether the claimant is entitled to the reliefs sought
- 3.Who should bear costs of the suit
Key legal issues
#Whether the reason for the grievant's dismissal was valid
The court found valid reasons existed for the dismissal, based on the grievant's admitted lateness, and did not find the medical report contradictory.
The grievant admitted in cross-examination that he was due at 6 am but reported at 6.45 am. The court held lateness was a ground for summary dismissal under section 44 of the Employment Act. Although the claimant alleged the Mediheal blood test results were contradictory (different alcohol readings, delayed testing, wrong phone number), the court examined the documents and found them not contradictory, concluding the intoxication evidence stood and lateness independently justified dismissal.
Whether a fair procedure was followed before termination
The court found fair procedure was followed; the grievant was invited to a disciplinary hearing and the minutes were produced in court.
The grievant conceded he was taken through a disciplinary process. He was invited by letter dated 25th February 2020, and minutes of the hearing that proceeded on 10th March 2020 were produced in court by the grievant. Combined with the finding of valid reason under section 45(2) of the Employment Act, the court returned the verdict that the dismissal was fair and justified, defeating the unfair termination claim and compensation.
What reliefs, if any, was the grievant entitled to
Notice pay and Legal Notice No. 63 of 2003 leave entitlements refused; pro rata leave pay of Kshs 5,611, days worked unpaid of Kshs 8,308.50 and overtime of Kshs 50,715.70 awarded.
Having found the dismissal fair, notice pay and statutory maximum compensation were refused. Leave was assessed under section 28 of the Employment Act, not the Legal Notice, yielding pro rata leave of Kshs 5,611. Although the respondent said it paid the conciliator's recommended dues, the court found no evidence of such payment, so it awarded the pleaded unpaid February 2020 days and overtime pay.
Legal principles established
#- An employee who admits reporting to work late provides a valid ground for summary dismissal under section 44 of the Employment Act, and dismissal effected through a fair disciplinary process is justified.
Court orders
#- 1.Leave pay of Kshs 5,611 for the period 1st August 2019 to 1st March 2020 on pro rata basis
- 2.Salary for days worked and not paid in March 2020 of Kshs 8,308.50
- 3.Overtime pay of Kshs 50,715.70
- 4.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
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, 2007)
Relief refused
#Declaration that the dismissal was unlawful/unfair and compensation under section 49(1)(c) Employment Act
The court found valid reasons for dismissal and a fair disciplinary process
One month's salary in lieu of notice
Grievant fairly and justly dismissed
Leave pay and travelling allowance under Legal Notice No. 63 of 2003 (protective security services order)
Leave is calculated per the contract and the Employment Act, not the Legal Notice; contract not pegged on Legal Notice No. 63 of 2003
Rest days pay for the entire employment period
No such award made; rest days claim not granted
Costs
The Respondent will pay costs of this suit plus interest at court rates with effect from the date of the judgment.
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.
Having found that there were valid reasons to warrant the grievant dismissal and that he was taken through a fair disciplinary process, I return the verdict that his dismissal was fair and justified.
In my view, the grievant having agreed that he reported to work late, I find that there were valid reasons for his dismissal.
Leave is not calculated as per a Legal notice but as per the employment contract and the law. There is no indication that the grievant’s contract was pegged on Legal Notice No. 63 of 2003.
The Respondent will pay costs of this suit plus interest at court rates with efiect from the date of the judgment.
Issues in the judgment
#Overtime amount pleaded/submitted (Kshs 44,877.48) differs from the amount stated as pleaded in the analysis (Kshs 50,715.10) and the amount actually awarded (Kshs 50,715.70).
Total awarded is stated as Kshs 64,635.2 which does not arithmetically match the sum of the component awards (5,611 + 8,308.50 + 50,715.70 = 64,635.20).
Judgment states the grievant was entitled to leave for period 1st August 2019 to 1st March 2020 although he worked only 1 year 9 months and was employed from 1st June 2018 per submissions.
Judgment indicates the witnesses were not cross-examined because claimant's side was absent, an irregularity not otherwise addressed.
Court awards salary for 'days worked and not paid in March 2020' while the claim as pleaded was for 15 days worked in February 2020 with a balance of Kshs 3,458.50.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Security Workers Union v KK Security Services Limited (Employment and Labour Relations Cause E039 of 2023) [2024] KEELRC 1701 (KLR)", Case Analysis (2024). ELRC Cause (Nakuru) of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1701/eng@2024-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.