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ELRCPartially AllowedKisumu MCELRC No. E034 of 2024 (Appeal)

Ochieng v G4S Kenya Limited (Appeal E068 of 2024) [2025] KEELRC 2747 (KLR)

Employment and Labour Relations Court
8 October 2025
3,400 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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G4S's dismissal of an employee for a racial remark stood on the reason but failed because the company rushed the disciplinary process and withheld the investigation report.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. V. Adhiambo delivered on 23rd October 2024 in Kisumu MCELRC No. E034 of 2024, which dismissed the appellant's claim against G4S Kenya Ltd. The appellant, a courier driver employed from 1st July 2008 until his summary dismissal on 16th January 2023, was dismissed for allegedly telling a client, Mr. Dipen of Ima Distributors, that he 'should go back to India' during an argument over a parcel delivery. The trial court had found the appellant had not proved his case on a balance of probabilities. On appeal, the court first found that the respondent had a valid and fair reason for dismissal: the remark was of a racial/ethnic character contrary to the respondent's Code of Conduct and qualified as gross misconduct under Section 44 of the Employment Act, applying the partly subjective test under Section 45(2). However, the court found two critical procedural flaws: the appellant was given only a few hours to respond to the notice to show cause, and the respondent never furnished him with the investigation report relied upon, undermining his right to fair trial and vitiating the disciplinary process. The termination was therefore procedurally unfair under Section 45 of the Employment Act. The appeal was allowed and the trial court's decision set aside. The court declared the termination unfair, awarded the equivalent of two months' gross salary (Kshs.58,926.70) under Section 49(1)(c), considering his 14 years and 5 months of unblemished service but his substantial contribution to the dismissal, and awarded costs of the appeal. Claims for damages for loss of earnings, discrimination and salary in lieu of notice were refused. Dr. Jacob Gakeri, Judge, delivered the judgment virtually at Kisumu on 8th October 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court misapprehended the evidence before it as regards the reason for termination of the appellant's employment
  2. 2.Whether the summary dismissal was procedurally fair, including adequacy of time to respond to the notice to show cause and non-availment of the investigation report
  3. 3.Whether the trial court's exercise of discretion ought to be interfered with
  4. 4.What reliefs, if any, the appellant is entitled to

Key legal issues

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01

Substantive justification for termination

Holding

The respondent had a valid and fair reason - the appellant's racial/ethnic offensive remark to a client qualified as gross misconduct under Section 44 of the Employment Act

Reasoning

The court found the appellant made a racial/ethnic offensive remark to Mr. Dipen of Ima Distributors during an argument. The test under Section 45(2) is partly subjective, requiring the employer to prove only reasons it genuinely believed to exist. The appellant admitted his remark was unprofessional and apologised in his statement. His conduct was inconsistent with a customer-facing courier role.

p. 5
02

Procedural fairness

Holding

The summary dismissal was procedurally flawed and unfair within the meaning of Section 45 of the Employment Act

Reasoning

The appellant was given only a few hours to respond to the notice to show cause, impairing his right to fair trial. Further, the respondent did not furnish him with the investigation report containing his statement and those of other interviewees, undermining his ability to prepare a defence, request cross-examination of witnesses, or have representation. These flaws vitiated the entire disciplinary process.

p. 6
03

Interference with the trial court's discretion

Holding

The trial magistrate failed to take into account relevant considerations, justifying interference with the discretionary dismissal of the suit

Reasoning

Applying the settled principles in Mbogo v Shah and United India Insurance v East African Underwriters, the court found the trial magistrate failed to consider that the appellant had only a few hours to respond and that the investigation report was not shared, warranting setting aside the trial judgment.

p. 7
04

Quantum of compensation

Holding

The equivalent of two months' gross salary (Kshs.58,926.70) was fair compensation under Section 49(1)(c)

Reasoning

The court considered the appellant's service of about 14 years and 5 months, his clean disciplinary record, and his appeal against dismissal, but also his substantial contribution to the summary dismissal. His December 2022 payslip showed a salary of Kshs.29,463.35, making two months' gross salary Kshs.58,926.70.

p. 7

Legal principles established

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  • For a termination of employment to pass muster, there must be both substantive justification and procedural fairness
  • A person facing allegations is entitled to particulars and sufficient time to respond to the notice to show cause
  • Failure to furnish an employee with the investigation report relied upon vitiated the disciplinary process, whether or not the employee requested it
  • The test under Section 45(2) of the Employment Act is partly subjective - the employer need only prove reasons it genuinely believed to exist

Court orders

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  1. 1.Appeal allowed and decision of the trial court set aside
  2. 2.Declaration that termination of the appellant's employment by the respondent was unfair
  3. 3.Equivalent of two months gross salary, Kshs.58,926.70, awarded as compensation under Section 49(1)(c) of the Employment Act
  4. 4.Costs of the appeal to the appellant
  5. 5.Certificate of service to be issued (noted as a legal imperative as ordered by the trial court)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Hon. V. Adhiambo (Kisumu MCELRC No. E034 of 2024)
Kisumu MCELRC No. E034 of 2024
Jurisdiction invoked
First appeal from the trial court (ELRC appeal jurisdiction)

Relief refused

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Damages for loss of earnings

The Employment Act does not provide for a remedy in damages for loss of earnings in termination of employment

p. 7

Relief for discrimination

The appellant did not adduce any evidence to demonstrate discrimination; the burden of proof was not discharged

p. 7

Salary in lieu of notice

The appellant was summarily dismissed under Section 44(1) of the Employment Act, so notice pay was not payable

p. 7

Costs

Costs of the appeal to the appellant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot, the appeal is allowed and the decision of the trial court is set aside.
p. 7Disposition
i. Declaration that termination of the appellant’s employment by the respondent was unfair. ii. Equivalent of two months gross salary, Kshs.58,926.70. iii. Costs of this appeal.
p. 7Final orders
it is the finding and holding of the court that termination of the appellant’s employment by the respondent was procedurally fiawed and thus unfair within the meaning of Section 45 of the Employment Act.
p. 6Procedural unfairness
the respondent’s refusal to furnish the appellant with a copy of the investigation report undermined his ability to launch a formidable defense and violated his right to fair trial. The omission constituted a critical procedural fiaw by the respondent and vitiated the entire disciplinary process.
p. 6Investigation report and fair hearing
Simply put, there must have been a substantive justification and procedural fairness
p. 3Requirements for lawful termination

Issues in the judgment

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minor

The judgment contains an internal citation inconsistency: Walter Ogal Anuro is cited against Teachers Service Commission in the appellant's submissions but as 'Walter Ogal Anuro V Lavington Security Guards Ltd (supra)' in the court's analysis, apparently conflating two cases

minor

The judgment states 'This is an appeal from the Judgment of Hon. V. Adhiambo delivered on 23rd October, 2024 in Kisumu MCELRC No. E034 of 2024, Arthur Oongo Ochieng V G4S Kenya Ltd' - the suit number is given as the trial court's own cause number without a separate appeal number for the present matter

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, "Ochieng v G4S Kenya Limited (Appeal E068 of 2024) [2025] KEELRC 2747 (KLR)", Case Analysis (2025). Kisumu MCELRC No. E034 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2747/eng@2025-10-08

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