Kenya National Private Security Workers Union v Midal Group Kenya Limited (Employment and Labour Relations Cause E044 of 2023) [2024] KEELRC 2811 (KLR)
The bottom line
#A Kenyan court awarded a security guard over Kshs. 551,000 because her employer dismissed her without giving her a chance to explain herself.
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 grievant was unlawfully and unfairly terminated
- 2.Whether the claimant is entitled to the reliefs sought and to what extent
Key legal issues
#Whether the termination of the grievant was procedurally fair
The termination was procedurally unfair; the respondent admitted dismissing the grievant but produced no evidence of a notice to show cause or hearing before termination on account of absconding duty.
The respondent dismissed the grievant under section 44(4)(a) of the Employment Act for absconding duty, yet there was no evidence that it sought her out or issued a notice to show cause before dismissal. Section 41 requires the employer to explain the reasons for termination and allow the employee to be heard. Section 45(2) renders termination unfair where the employer fails to prove a valid and fair reason and a fair procedure. Since the grievant was never heard, the dismissal was unfair and unjustified.
Entitlement to remedies following unfair termination
Notice pay, 6 months' compensation, unpaid June 2022 salary, underpayment of salary and 2022 leave were awarded; overtime and gratuity claims failed for want of proof.
Having found the dismissal unfair, the court exercised its discretion under the Employment Act to award one month's salary in lieu of notice per Legal Notice No. 125 of 2022, six months' salary as compensation for the dismissal without due process, 11 days' unpaid salary for June 2022, underpayment as tabulated by the claimant, and untaken leave for 2022. Overtime failed because the muster roll was not produced, and gratuity failed because the grievant was an NSSF member.
Legal principles established
#- An employer cannot unilaterally dismiss an employee without according the employee an opportunity to be heard
- Termination without valid reason and fair procedure is unfair under section 45(2) of the Employment Act
Court orders
#- 1.Payment of 1-month salary in lieu of notice of Kshs. 17,481.85 as per Legal Notice No. 125 of 2022
- 2.Compensation for unfair termination equivalent to 6 months' salary = Kshs. 104,891
- 3.Payment of 11 days' salary for days worked and unpaid in June 2022 = Kshs. 6,410
- 4.Payment of underpayment of salary as tabulated in the memorandum of claim totalling Kshs. 404,788.05
- 5.Payment for leave not taken for year 2022 = Kshs. 17,481.85
- 6.Total award of Kshs. 551,052.75 less statutory deductions plus costs and interest at court rates 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 under the Employment Act, 2007 (first-instance employment claim)
Relief refused
#Overtime pay
Not proved; the muster roll showing time and hours worked was not produced
Gratuity
The grievant was a member of NSSF
Costs
Costs of the cause awarded to the claimant with interest at court rates from the date of judgment (total awarded 'plus costs and interest at Court rates with effect from the date of this 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.
Under the law, an employer cannot unilaterally dismiss an employee from duty without according the employee an opportunity to be heard.
she was never given an opportunity to explain herself and therefore her dismissal was unfair and unjustified as per section 45(2) of the Employment Act 2007
Total awarded = Kshs 551,052.75/- less statutory deductions plus costs and interest at Court rates with efiect from the date of this judgment
Issues in the judgment
#The judgment alternately refers to the grievant (Janet Adhiambo Otieno) as 'the claimant' and to the union as the claimant, and shifts between feminine and masculine pronouns.
The court's decision not to award overtime appears as a numbered item within the list of awards, though no sum is granted for it.
The respondent's case is inconsistently described: the claimant's memorandum alleges verbal termination on 11th/13th June 2022, while the judgment recites a letter of summary dismissal following abscondence.
The judgment is silent on the specific claims for rest days and public holidays when making final orders, though these were pleaded.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Security Workers Union v Midal Group Kenya Limited (Employment and Labour Relations Cause E044 of 2023) [2024] KEELRC 2811 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2811/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.