Winstar Security Guards Limited v Wanyonyi (Employment and Labour Relations Appeal E013 & E024 of 2023 (Consolidated)) [2024] KEELRC 1944 (KLR)
The bottom line
#A Kenyan security firm must pay a guard for unfair dismissal because it couldn't prove he absconded or followed fair procedures.
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's termination was unfair, considering the allegations of absconding and the forged KCSE certificate
- 2.Whether the trial court properly entertained the review application while an appeal was pending
- 3.What compensation under section 49 of the Employment Act the Respondent is entitled to
Key legal issues
#Fairness of termination
The termination was unfair and unjustified; the appeal against that finding fails
The Appellant did not issue a dismissal letter nor demonstrate measures to trace the Respondent and subject him to a disciplinary process after the alleged absconding. The fake certificate issue was not investigated by police and was not the stated reason for dismissal, so it was immaterial. The court re-evaluated the evidence afresh as a first appellate court and arrived at the same finding as the trial court.
Review pending appeal
The trial court properly entertained the review application since it was filed before the memorandum of appeal and before the appeal was determined
Order 45 rule 1 of the Civil Procedure Rules permits review by the court that passed the decree. The review application was filed on 31/5/2023 whereas the memorandum of appeal was filed on 5/6/2023; the appeal had not been allowed. There was thus no bar to the trial court exercising its review jurisdiction.
Quantum of compensation under section 49 of the Employment Act
The trial court's blanket award on review was irregular; compensation is varied to 6 months' salary (Kshs. 78,000/=) given the Respondent's barely 6 months of service
Section 49 of the Employment Act requires compensation to run between 1 and 12 months' salary, with the number of months stated. The trial court awarded a blanket amount without specifying months. Considering the short period of employment, the appellate court substituted an award of 6 months' salary at Kshs. 13,000 per month.
Legal principles established
#- A first appellate court must re-evaluate the evidence on record afresh and reach its own findings
- Where an employer alleges an employee absconded, the employer must demonstrate efforts made to reach the employee and ascertain the reasons for absence
- A court retains power of review notwithstanding the filing of an appeal, so long as the appeal has not been determined
Court orders
#- 1.The finding that the Respondent's termination was unfair is upheld
- 2.Compensation for unfair termination set at 6 months' salary, i.e. Kshs. 78,000/=, in place of the amount awarded on review
- 3.The rest of the trial court's judgment (notice pay, 15 days' salary, underpayment, overtime) remains undisturbed
- 4.The Appellant to pay costs of this appeal and of the lower court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Nakuru Chief Magistrate's Court (CMELRC Cause No. 67 of 2019)
- CMELRC 67 of 2019
- Jurisdiction invoked
- First appeal from the subordinate court under the Employment and Labour Relations Court's appellate jurisdiction
- Consolidated with
- Nakuru ELRC Appeal No. E024 of 2023
Relief refused
#The Appellant's prayer that the entire suit be dismissed on grounds of absconding and forged certificate
The employer failed to demonstrate efforts to trace the employee for disciplinary process, and the fake certificate issue was not material to the dismissal
Costs
The Appellants will pay costs of this appeal and of the lower court.
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.
The rest of the judgment remains undisturbed. The Appellants will pay costs of this appeal and of the lower court.
I will award him compensation of 6 months salary for the wrongful termination which translates to 6 x 13,000 = 78,000/=
when an employer alleges that an employee has absconded duty, the employer must demonstrate efiorts made to reach out to the employee and find out reasons leading to his absence from work.
In the circumstances, the issue of a fake form four certificate is not material to the dismissal of the Respondent.
My reading of this section shows that a review can be granted so long as an appeal has not been allowed, as in this case where the review was filed before this appeal was considered.
Issues in the judgment
#Inconsistent statement of the amount awarded on review: the judgment records the trial court awarding Kshs. 123,994.48 in one passage and Kshs. 93,724 in another
Parties' descriptions are repeatedly swapped in places, e.g. 'the Respondent was employed by the Respondent' and 'the Respondent herein by the Application of 31st May, 2023'
The trial court magistrate is referred to as both 'PM' and 'CM' for the same officer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Winstar Security Guards Limited v Wanyonyi (Employment and Labour Relations Appeal E013 & E024 of 2023 (Consolidated)) [2024] KEELRC 1944 (KLR)", Case Analysis (2024). ELRC Appeal No. E013 of 2023 (consolidated with Appeal No. E024 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1944/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.