Brinks Security Service v Evans (Appeal E010 of 2023) [2025] KEELRC 2055 (KLR)
The bottom line
#A Kenyan court confirmed a security guard was unfairly dismissed because his employer never gave him a hearing, but cut his money award for claims older than three years.
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 appeal against the trial court's finding of unfair termination is merited
- 2.Whether the reliefs awarded by the trial court (overtime, off days, public holidays, compensation) were justified
- 3.Whether some of the awarded claims are time-barred under section 90 of the Employment Act
Key legal issues
#Whether the termination of the Respondent was substantively and procedurally fair
The termination was unfair; the employer failed to give valid reasons or follow section 41 procedure
The Respondent was allegedly found at an unauthorized location carrying milk, but was dismissed without a Notice to Show Cause, explanation in a language he understands, or a hearing. Section 41 of the Employment Act requires the employer to explain reasons and hear representations before termination. There was no evidence the Claimant was given an opportunity to be heard with a witness present, so the trial court's finding of unfair termination stood.
Whether monetary claims for overtime, off days and public holidays were time-barred
Claims whose cause of action arose before 3rd September 2017 (3 years before filing on 4th September 2020) were time-barred and the corresponding awards were reduced
The suit was filed on 4th September 2020; relying on section 90 of the Employment Act and Mary Kitsao Ngoma v Krystalline Limited, the court held that claims arising more than 3 years before filing are not continuous injuries and are barred. It accordingly disallowed the pre-September 2017 portions of the overtime, off days and public holiday awards.
Whether the appellate court should interfere with the reliefs awarded by the trial court
The compensation of 3 months' salary and other awards were well analysed and would not be disturbed, save for time-barred portions
As a first appellate court it re-evaluated the evidence but found the trial court's awards, including 3 months' compensation for unlawful termination, properly analysed under sections 49(4) and 50 of the Employment Act. Only the time-barred portions were deducted, confirming the compensation award.
Legal principles established
#- For a termination to pass the fairness test it must be shown that there was not only substantive justification but also procedural fairness
- An employer must adhere to the twin requirements of due procedure and substantive justification before termination
- Claims which arose over 3 years before filing are time-barred and cannot be regarded as continuous injury
Court orders
#- 1.Appeal on the finding of unfair termination dismissed/upheld in favour of the Respondent
- 2.Overtime award reduced from Kshs.210,549.06 to Kshs.130,229.27 (Kshs.34,530.25 for December 2016 to September 2017 disallowed and Kshs.52,000 deducted up to September 2017); award of Kshs.78,229.27 confirmed
- 3.Off days award reduced by time-barred Kshs.19,731 to Kshs.134,109
- 4.Public holidays award reduced by Kshs.5,919.47 to Kshs.35,854.53
- 5.Grand total award of Kshs.342,027.81 to the Respondent
- 6.Respondent to be paid costs of the lower court trial and of this appeal
- 7.Interest at 14% per annum on the award from date of judgment until full payment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court (Honourable Principal Y.I Khatambi)
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment (Employment and Labour Relations Court)
Relief refused
#Overtime claim for December 2016 to September 2017 (Kshs.34,530.25) and further Kshs.52,000 up to September 2017
Time-barred, having been filed more than 3 years after the cause of action arose
Off days claim of Kshs.19,731
Time-barred
Public holidays claim of Kshs.5,919.47
Time-barred
Costs
The Respondent will be paid costs of the lower court trial and of this appeal trial.
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.
There is no evidence that the Claimant was given an opportunity to be heard in the presence of his witness. The court agrees with the trial court that the Claimant has proved he was unlawfully terminated.
Any claim whose cause of action arose before 3rd September 2017 would be barred by time limitation.
The Respondent will be paid costs of the lower court trial and of this appeal trial.
Interest will also accrue at 14% per annum on this award from date of judgment until full payment.
Total for overtime will be Kshs.130,229/27 instead of Kshs.210,549.06/=.
Issues in the judgment
#Internal inconsistency in arithmetic on the overtime reduction
Role labels are used inconsistently in the memorandum of appeal grounds, referring to the Respondent as 'Claimant' in some grounds
Names of the parties are not stated in the judgment as provided; parties are referred to only as Appellant and Respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brinks Security Service v Evans (Appeal E010 of 2023) [2025] KEELRC 2055 (KLR)", Case Analysis (2025). Appeal from Principal Magistrate's Court, Judgment dated 11th April 2023 (Memorandum of Appeal dated 5th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2055/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.