https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2391

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **APPEAL NO. E043 OF 2026** **FRANCIS WANYONYI APPELLANT** *VERSUS* **G4S LIMITED RESPONDENT** **[Being an appeal from the judgment of Hon. T. M. Orlando delivered on 29 January 2026 in Nairobi CMELRC No. E1074 of 2023]** **JUDGMENT** The appeal arises from the judgment delivered on 29 January 2026 in Nairobi CMELRC No. E1074 of 2023. The appeal is on 3 grounds: 1. *The learned magistrate erred in law and fact in finding that there was substantive fairness leading to the dismissal of the appellant by the respondent.* 2. *The learned magistrate erred in fact and law in finding that there was procedural fairness leading to the dismissal of the claimant [appellant].* 3. *The learned magistrate erred in law and fact in dismissing the appellant’s claim.* The appellant seeks that the trial court's decree be set aside and his case be reviewed, with an award of the claims. The judgment be substituted with an award of Ksh. 204,000 compensation for unfair termination of employment. The case before the trial court was that on 10 January 2003, the respondent employed the appellant as a security officer earning Ksh. 17,000 per month. He worked until 1 December 2021, when his employment was terminated on the grounds that he was negligent in his duties, failing to safeguard the client’s property and to adhere to standard operating procedures and the organisation's core values. The appellant was charged in Criminal Case No. E1922 of 2021, which was dismissed under section 87(a). He claimed that there was unfair termination of employment and thus claimed the following: 1. Notice pay Ksh. 17,000. 2. One year leave for 2014 Ksh. 51,000. 3. 12 months' compensation Ksh. 204,000. 4. Unpaid salary for 3 months Ksh. 51,000. 5. Unpaid salary for December 2021 to date at the rate of Ksh. 17,000. 6. Costs of the suit. In reply, the respondent admitted that the appellant was employed as a security guard in a letter dated 10 January 2003. At the time of his termination of employment on 2 December 2023, he had a basic wage of Ksh. 12,522, a house allowance of Ksh. 1,878.30, and a soap allowance of Ksh. 50.00 and earned overtime. Under the respondent’s disciplinary code, all security guards were subject to it. The appellant was assigned duties at the respondent’s client, Kenya Power and Lighting Company Limited, in Ndenderu. He was required to conduct a physical inspection of the assigned area to ensure there were no signs of interference. These patrols were done by day and night guards. However, on 15 October 2021, unknown persons accessed KPLC’s premises and stole the client's copper earth wire. The appellant was on duty at the time of the theft. He recorded a statement on 16 October 2021. He was suspended from duty and invited to a disciplinary hearing on 29 October 2021 that was conducted on 4 November 2021 but rescheduled to 18 November 2021. The appellant attended but failed to give satisfactory responses. KPLC reported the theft to Tigoni Police Station, and the appellant was arrested and charged. The respondent adhered to the due process leading to the termination of employment. The learned magistrate heard the parties, delivered judgment, and held that the claim was without merit and that the termination of employment was justified. The case was dismissed. On appeal, the appellant submitted that the trial court's findings should be set aside. The termination of employment was unlawful and unfair. There was no observance of due process under section 41 of the Employment Act (the Act). The appellant was summoned for a disciplinary hearing without being allowed adequate time. There was no notice to show cause issued setting out the allegations he was supposed to respond to. Without due process, the resulting termination of employment was unlawful. In **Naomi Wangui Kung’u v Board of Governors S.C.L.P. Samaj School [2022] eKLR**, the court held that sections 41, 43 and 45 of the Act are mandatory. Where the employer fails to follow the procedures set out therein, the termination of employment is unfair. Without notice to show cause being issued, the appellant had no chance to know his case. He could thus not prepare adequately. No evidence was submitted during the disciplinary hearing to warrant dismissal. According to the alleged investigation report dated 1 November 2021, the appellant was unaware of it before the disciplinary hearing. In **Regent Management Limited v Wilberforce Ojiambo Oundo [2018] eKLR,** the court held that the failure to issue the employee with the investigation report compromised the disciplinary process. The trial magistrate hence failed to address the evidence in its entirety and thus arrived at an incorrect judgment, which should be set aside, and the claims should be analysed on their merits. The respondent submitted that on the night of 15 October 2021, the appellant was assigned duties as a security guard at the KPLC in Ndenderu when unknown persons entered the premises and stole copper cables. The appellant and his colleagues were stationed at the side where the property was stolen. The matter was reported to the police, and he was arrested. The respondent submitted that due process was followed as required under sections 41 and 43 of the Act. The appellant was suspended from duty, invited to a disciplinary hearing, and he failed to give satisfactory responses, leading to the termination of his employment. The respondent had justified grounds for termination of employment. He was charged in a criminal case following a report by KPLC. At the time of terminating his employment, the respondent genuinely believed there were justified grounds for theft and for failure to adhere to the code of conduct and the contract, which required the appellant to undertake his duties without negligence. In **Julius Kirimo Mwandoro v KCB Bank Kenya Limited [2021] eKLR**, the court held that where employment is terminated based on evidence presented, the employer should not be faulted. In this case, the theft at the premises the appellant was guarding formed a proper basis for termination of his employment. Due process was followed, leading to a disciplinary hearing. Under section 44 of the Act, the respondent was justified in issuing notice of summary dismissal. The appeal seeks to introduce new facts which should not be allowed at this stage. The appeal should be dismissed with costs. **Determination** This is a first appeal. The court is required to review the record, reassess the findings and make a conclusion. However, consider that the trial court had the chance to hear the evidence. The appellant’s case is that, on 1 December 2021, his employment was unlawfully and unfairly terminated by summary dismissal. That the respondent also instituted criminal case No. E1922 of 2021 against him. The response is that, following the theft at the premises guarded by the appellant on the night of 15 October 2021, he was suspended and invited to a disciplinary hearing on 18 November 2021, but he failed to provide satisfactory responses regarding negligence of duty, leading to termination of employment. The client, KLPC, filed a complaint with the police leading to the appellant being charged in Criminal Case No. E1922 of 2021. It is undisputed that the respondent employed the appellant as a security guard. He was assigned duties at the KLPC, and on the night of 15 October 2021, theft occurred. He recorded his statement. The matter was reported to the police. The respondent invited the appellant to a disciplinary hearing. Under section 44 of the Act, the employer has the right to terminate employment by summary dismissal where the employee is in breach of a fundamental provision of the employment contract or is guilty of gross misconduct. The reciprocal right to the employee is that he is issued with notice and allowed to attend to make his representations under section 41(2) of the Act. In the case of **Consolidated Bank of Kenya Limited v Njuguna [2026] KECA 1386 (KLR),** the court held that where the employee is in breach of the employment contract, a policy of the employer or fails to undertake his duties properly as assigned, termination of employment is justified. This position is reiterated in **Irangi v Teachers Service Commission [2026] KECA 1087 (KLR)** that upon the employer adhering to the due process set out under section 41 and 43 of the Act by taking the employee through the due process and giving reasons that justify the termination of employment, the court should not rewrite the employment contract. In this case, the appellant was found to be negligent in his duties; he was suspended and invited to a disciplinary hearing. He attended on 18 November 2021 and was allowed to make his representations. The records filed by the respondent confirm that, during the disciplinary hearing, the appellant admitted he did not notice the copper wires had been cut and left the duty station without a proper handover. Part of his duties as a security guard was to secure the premises assigned at KPLC, Ndenderu. The appellant failed to adhere to the role assigned to him by ensuring he conducted a proper handover as he exited his shift. Negligence of duty and improper undertaking of work is defined under section 44(4) of the Act as gross misconduct. Such justifies summary dismissal. In this case, the respondent issued a suspension letter and allowed the appellant time to attend before the disciplinary panel. The court finds the termination of employment was justified. The findings by the trial magistrate are sound. The appeal is without merit. On costs, the appeal is found without merit; costs should follow. However, the parties have been diligent in addressing the appeal; the trial court's judgment was issued in January 2026, and the judgment herein was issued in the same year. Each party will bear its costs. **Accordingly, the appeal is hereby dismissed, and judgment is entered in Nairobi CMELRC No. E1074 of 2023 is upheld. Each party shall bear its costs.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ,** **JUDGE** **In the presence of:** Court Assistant: Kemboi ……………………………………………… and …………………………………..………