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ELRCPartially AllowedNot stated in the judgment as provided· [2025] KEELRC 945 (KLR)

G4S Kenya Limited v Ochieng (Appeal E049 of 2024) [2025] KEELRC 945 (KLR)

Employment and Labour Relations Court
27 March 2025
JGJacob Gakeri
4,952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed an employer can dismiss a guard for negligence, but slashed the award because the employer's unsigned disciplinary records couldn't prove fair procedure.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against a trial magistrate's judgment which had declared the appellant's refusal to pay terminal dues unlawful and awarded the respondent, a security guard summarily dismissed in September 2021 after conductor cables and insulators went missing from the AEE Power site, one month's salary in lieu of notice, Kshs.330,798 as damages for loss of employment and gratuity. The trial court had reasoned that the criminal trial resulting in acquittal meant no loss occurred and that parallel disciplinary proceedings amounted to multiple trials. Gakeri J allowed the appeal in part. On substance, the court found the items were stolen and that the respondent, who claimed to have patrolled all night yet was unaware of the theft, was careless and dishonest, so the employer had substantive justification for summary dismissal. On procedure, however, the unsigned minutes and unsigned investigation report carried no probative value, leaving the employer unable to verify compliance with the mandatory requirements of Section 41 of the Employment Act; the dismissal was therefore procedurally flawed. The court held that criminal and disciplinary processes are independent and an acquittal does not bind an employer, faulting the trial magistrate on that ground. On reliefs, the court reduced the 12 months' compensation to 3 months' gross salary (Kshs.82,669.47), set aside the notice pay and the gratuity award for want of factual or contractual basis, and upheld the declinature of October 2021 salary. Each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Validity of reason for summary dismissal

Holding

The appellant had substantive justification: the respondent was negligent and dishonest as a night guard

Reasoning

Evidence from the criminal trial and before the trial court showed items were stolen from the site the respondent guarded. The respondent's claim that he patrolled all night contradicted his colleague's account, and the theft went undetected until the day guard arrived, indicating carelessness. His insistence on having patrolled rendered him dishonest.

p. 7
02

Procedural fairness of the disciplinary process

Holding

The procedure fell below the fair threshold because the minutes and investigation report were unsigned and unverifiable

Reasoning

Section 41 of the Employment Act is mandatory. The minutes of the hearing and the investigation report were unsigned and thus had no probative value, leaving the employer without verifiable evidence that the respondent was accorded an opportunity to defend himself, that his colleague made representations, or that documents were availed to him.

p. 8
03

Effect of acquittal in criminal case on dismissal

Holding

The trial magistrate erred in treating the acquittal and parallel disciplinary process as rendering the dismissal unlawful

Reasoning

Citing Andrew Maina Githinji, James Mugera Igati and Geoffrey Kiragu Njogu, the court held that disciplinary and criminal processes are independent, with different standards of proof, and an acquittal does not bind an employer. The trial court's findings of multiple trials and prejudice were wrong.

p. 9
04

Reliefs: compensation quantum, notice pay and gratuity

Holding

12 months' compensation reduced to 3 months' gross salary; notice pay and gratuity set aside

Reasoning

The award was styled as damages rather than compensation under Section 49(1)(c) and was unjustified and unexplained. Having found the dismissal substantively justified, notice pay was untenable under Section 44(1). Gratuity lacked any contractual or CBA basis.

p. 10

Legal principles established

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  • Criminal proceedings and internal disciplinary proceedings arising from the same facts are independent; an acquittal does not bind the employer
  • Unsigned documents lack ownership and authenticity and carry no probative value
  • A valid termination requires both substantive justification and fair procedure
  • Availing documents relied on by the employer to the employee before a disciplinary hearing is integral to the right to fair hearing

Court orders

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  1. 1.Award of one month's salary in lieu of notice is set aside
  2. 2.Compensation for unlawful dismissal is reduced to the equivalent of 3 months gross salary, Kshs.82,669.47
  3. 3.Gratuity award of Kshs.1,064,046.35 is set aside
  4. 4.Other awards are upheld
  5. 5.Parties shall bear own costs of the appeal
On appeal from
Principal Magistrate's Court (Winam)
Not stated
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court from the trial Magistrate's judgment

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, "G4S Kenya Limited v Ochieng (Appeal E049 of 2024) [2025] KEELRC 945 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/945/eng@2025-03-27

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