[2025] KEELRC 945 (KLR)

G4S Kenya Limited v Ochieng (Appeal E049 of 2024) [2025] KEELRC 945 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEELRC 945 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Appeal E049 of 2024

JK Gakeri, J

March 27, 2025

Between

G4S Kenya Limited

Appellant

and

Alex Omondi Ochieng

Respondent

Judgment

1. By a memorandum of claim dated 4th May, 2023 the respondent instituted proceedings against the appellant alleging unlawful and unfair termination of employment non-payment of terminal dues and unpaid salary seeking:a.A declaration that the appellant’s action of refusal to pay terminal dues and benefits was unlawful, unfair and inhuman.b.A declaration that the respondent was entitled to terminal dues and compensatory damages pleaded.c.An Order for the respondent to pay terminal dues and compensatory damages.d.Interest on (c) above from date of filing till payment in full.e.Costs of this suit plus interest thereon.

2. The respondent’s case was that he joined the appellant on 2nd June, 2006 at Kshs.27,566. 49 per month and served diligently until 21/9/2021 when his employment was terminated on allegations of stealing by servant and was charged at Winam Principal Magistrate’s Criminal Case No. E813 of 2021 but acquitted on 16th November, 2022.

3. According to the respondent there was no justification to terminate his employment and was not paid the salary for October, 2021.

4. The appellant’s case on the other hand was that it employed the respondent as a security guard at a basic salary of Kshs.15,142. 00 per month.

5. That on 17th September, 2024 the respondent was deployed at the AEE Power site and on the night of 3rd September, 2021, 2 drums of 50mm Conductor Cables and three crates of HVK insulators went missing from the site as noted by the day guard who was to take over at 6:30am and declined to do so and notified the appellant’s management and one Jacob Olando visited the site and all present patrolled the site and confirmed that the items were missing and AEE power was contacted and one Raphael Nyagaya visited the site and verified the missing items and reported the matter at Kondele Police Station.

6. The appellant’s case was that the respondent was suspended by letter dated 11th September, 2021, invited for a hearing, attended with one Solomon Shikanga on 15th September, 2021 and was summarily dismissed vide letter dated 21st September, 2021 for negligently performing his duties and dishonesty.

7. After considering the evidence adduced before the court and submissions by the parties the learned trial Magistrate entered Judgment in favour of the respondent against the appellant in the following terms.a.Declaration that the respondent’s refusal to pay terminal dues and benefits was unlawful, unfair and inhuman.b.One month’s salary in lieu of notice Kshs.27,566. 49. c.Damages for loss of employment Kshs.330,798. 00. d.Unpaid salary for October 2021 declined.e.Gratuity for 15 years Kshs.771,861. 84. f.Interest on compensation and terminal dues above from date of filing.This is the judgment of the trial court appealed against.

8. The learned trial Magistrate is faulted on various grounds according to the Memorandum of Appeal.The appellant argues that the trial court erred in:a.Failing to hold that there was a valid and fair reason for termination of the respondent’s employment.b.Disregarding the reasons cited by the appellant’s letter dated 21st September, 2021. c.Failing to hold that there was procedural fairness and proceedings were conducted in consonance with the appellant’s Disciplinary Code and were separate from the criminal proceedings.d.Holding that the disciplinary hearing was conducted alongside the criminal trial and it could not supersede the findings of the criminal trial.e.Finding that the respondent was taken through multiple trials.f.Finding that the respondent’s dismissal after acquittal of charge was unlawful.g.Making an award for damages for loss of employment.h.Awarding 12 months compensation which is inordinately high.i.Making an award of salary in lieu of notice.j.Making an award of gratuity.k.Computation of gratuity at one months salary per year worked without a basis.

Appellant’s submissions 9. Concerning the validity of dismissal, counsel for the appellant placed reliance on the Court of Appeal decision in Bamburi Cement Ltd V William Kilonzi [2016] eKLR to submit that the trial court did not evaluate the evidence before it and disregarded the reasons set out in the dismissal letter.

10. The decisions in Banking Insurance and Finance Union (Kenya V Consolidated Bank of Kenya [2014] eKLR and Gregory Kwabi Wekule & 2 Others V Musoni Kenya Ltd [2021] eKLR on the effect of criminal cases on internal disciplinary hearings to urge that the appellant was not bound by the decision of the criminal court and further urge that the appellant had valid reasons to dismiss the claimant as he was negligent and dishonest.

11. Reliance was also placed on the sentiments of the court in Judicial Service Commission V Gladys Boss Shollei & Another [2014] on dishonesty as well as those in Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 Others [2019] eKLR on the standard of proof under Section 43(2) of the Employment Act.

12. As regards procedural fairness, reliance was placed on the decision in Abdi Mohamed Daib V Kenya Ports Authority [2016] eKLR on the prerogative of an employer to discipline its employees for misconduct.

13. Counsel submitted that the respondent’s dismissal was procedurally fair as by law required.

14. Finally, on reliefs, counsel submitted that the respondent was not entitled to salary in lieu of notice, 12 months salary was excessive and cited Moi Teaching and Referral Hospital V James Kipkonga Kendagor [2019] eKLR, Kiambu Dairy Farmers Co-operative Society Ltd V Rhoda Njeri & 3 Other [2018] eKLR and Ol Pejeta Ranching Ltd V David Wanjau Muhoro [2017] eKLR among others.

15. On gratuity, counsel submitted that the claimant was not entitled to it on account of Regulation 17(2) of the Regulation of Wages (Protective Security Services Order 1998 as the dismissal was summarily.

Respondent’s submissions 16. Reliance was made on the provisions of Section 12 and 18(4) and (5)(b) of the Employment Act on the disciplinary rules applicable and payment of dues to an employee after dismissal, to submit that the appellant breached the law.

17. Also relied on were the provisions of Sections 43(1), 45 of the Act to submit that in determining whether the respondent’s dismissal was unfair the court should be guided by these provisions.

18. Finally, counsel for the respondent cited the provisions of Section 49 and 50 of the Employment Act to submit that since the respondent’s dismissal was unfair, he was entitled to the reliefs sought in the Memorandum of Claim.

19. Counsel defended the judgment of the trial court and urged the court to dismiss the appeal with costs for want of merit.

Analysis and determination 20. I have considered the appeal, submissions by the parties and the authorities relied upon.

21. This being a first appeal, the court’s role is as articulated in legions of decisions of the Court of Appeal, including Gitobu Imanyara & 2 Others V Attorney General [2016] eKLR, where the court stated as follows:“An appeal to this court from a trial by the High court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect”.

22. Similar sentiments were made in Abok James Odera t/a A. J. Odera & Associates V John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, Selle & Another V Associated Motor Boat Co. Ltd [1968] EA 123 and Mwana Sokoni V Kenya Bus Services Ltd [1985] among others.

23. In his evidence in Chief, the respondent testified that the was employed as a Security Officer in May 2006.

24. On cross-examination, he stated that he was being paid Kshs.27,566. 49 and his basic salary in 2018 was Kshs.14,000. 00.

25. It was his testimony that he was on duty on 3rd September, 2021 and nothing was stolen. He confirmed that the supervisor came in at night as did the alarm team at 3am and patrolling and everything was done.

26. He testified that the day guard stated that chairs were missing and others said electronic insulators were missing. That he received a notice and attended the hearing and was not paid terminal dues.

27. RWI, Mr. Stephen Owuor confirmed, on cross-examination that the disciplinary panel was chaired by Mr. Kenndedy Onyango, the Risk Officer and there was provision for appeal. According to him the items lost were two complete fifty MM conductors and insulators but had no documentary evidence of the cost of the items. It was his testimony that the respondent worked at the site, was acquitted in the criminal case and dismissed before the criminal case was concluded.

28. The first three grounds of appeal fault the court’s finding on the termination of the respondent’s employment.

29. As regards termination of employment, the provisions of Section 41, 43, 44, 45 and 47(5) of the Employment Act set out the architecture of a fair termination.

30. Under Section 45 of the Employment Act and as correctly submitted by the parties, for a termination of employment to pass muster it must be shown that the employer had a valid and fair reason to terminate the employment relating to conduct, capacity or compatibility of the employee or operational requirements of the employer and conducted the termination in accordance with a fair procedure, which entails compliance with the mandatory requirements of Section 41 of the Employment Act.

31. The provisions of Section 43(1) and (2) of the Act relate to the reason for termination, while Section 47(5) of the Act prescribes the burden of proof.

32. Put in the alternative, the termination of employment passes the fairness test, if, and only if it is demonstrated that the employer had a substantive justification for the termination of the employee’s employment and conducted the termination is accordance with a fair procedure as held in Naima Khamis V Oxford University Press (EA) Ltd [2017] eKLR.See also Walter Ogal Anuro V Teachers Service Commission [2013] eKLR.

33. While the appellant submitted that it had reasons to terminate the respondent’s employment, the respondent urged the court to uphold judgment of the trial.

34. As regards the reason(s) for dismissal, the respondent’s memorandum of claim and witness statement dated 4th May, 2023 are loudly silent on what transpired though the respondent admits having been charged at the Winam Principal Magistrate’s Court and later acquitted of all charges.

35. Evidence adduced in the criminal trial reveals that the respondent was on duty on the night of 3rd/4th September, 2021 at African Equipment Engineering Ltd (AEE) at Mamboleo having been posted by Mr. Hongo (PW4). That the supervisor was called by the day guard (PW2) to the site on account that it had been tampered with and on inspection of the site in the company of the respondent and PW2 and PW3, confirmed that some conductor wires had been stolen.

36. PWI, Mr. Raphael Nyagaya testified that he was called to the site by the day guard (Peter) and found the respondent on site and PW4 and inspected the site and confirmed that an AV conductor, LV insulator and other items missing.

37. However, the missing items were not recorded in the occurrence book. PW5, PC Moses Wambua testified that he visited the site on 4th September, 2021 and ascertained that two drums of conductor wire and three crates of HVK insulators had been stolen.

38. RW5 provided the OB to show that the accused were on duty and a delivery note to show that the stolen items had been delivered at the site. The witness confirmed that there was no evidence to show that the day guards handed over to the night guards.

39. The respondent’s hand written statement on record, whose contents he did not contest reveal that he reported on duty a few minutes to 1830hours and found that the day guards had already left the assignment site but his colleague Mr. Rodgers Omondi Busuru was present, that patrolled the assignment and wrote down the status, and it was drizzling on and off.That they made patrols till 0600hours.

40. The respondent stated that the day guard is the one who discovered the theft as he had taken some time on the assignment and confirmed that some items were missing and there was some evidence of some activity on the outer side.

41. In his response to specific questions, the respondent stated that he arrived at the site around 1830hours.

42. That he went around after the rain since his colleague had already taken over from the day guard.

43. He stated that the supervisor visited at 2313hours and the alarm team at 0330hours and patrolled the assignment.

45. The respondent stated that they patrolled the site before the day guard arrived but did not notice anything.

46. Finally, the respondent admitted that the deployment team and all guards were to blame for the lost items.

47. Strangely, the statement made by Mr. Rodgers Omondi Busuru and that of Mr. Alext Ocheing differ in certain respects. For instance, while Mr. Rodgers Omondi stated that he did not patrol the site the entire night as he had no safety boots and had been told that there are snakes, Mr. Alex Ochieng stated that they patrolled the entire night.

48. Similarly, while Mr. Rodgers Omondi stated that the night supervisor and alarm team did not patrol the site, Mr. Alex Ochieng stated that they did at 2313 hours and 0330hours but both agree on the time.

49. Finally, in his evidence in court, the respondent testified that the day guard stated that some chairs were missing but also agreed with counsel that other items were also missing.

50. Puzzlingly, neither the Report on the theft at AEE dated 9th September, 2021, prepared by Jacob Olando nor the minutes of the disciplinary hearing held on 16th September, 2021 compiled by Mr. Stephen Owuor, Human Resource, dated 20th September, 2021 are signed, a fact Mr. Stephen Owuor confirmed on cross-examination.

51. It trite that an unsigned document lacks ownership and authenticity and has no probative value in a court of law.

52. The trial court found that based on the criminal trial, no loss of property had taken place and, in any case the disciplinary hearing was conducted alongside the criminal trial thus multiple trials which prejudiced the respondent.

53. From the evidence adduced before the criminal court to the evidence placed before the learned trial Magistrate, there is sufficient evidence to show that some items were stolen at the site the respondent and his colleague were guarding on the night of 3rd/4th September, 2021.

54. The respondent stated that although they patrolled the site the entire night and there was a drizzle on and off, which, in the court’s view sounds untrue in light of the evidence by the colleague, they did not notice anything because, he in particular had only been at the site for about 2 weeks and could not tell whether anything was missing, which, in the courts view amounts to negligence in light of his role as a security guard.

55. The respondent testified that he patrolled the site when he reported and entered the status. His evidence about the two having patrolled the assignment site the entire night and that the supervisor and the alarm team patrolled the site contradicts that of his colleague who was truthful that he did not as he had no boots and feared snakes.

56. Section 44(4)(c) of the Employment Act allows an employer to summarily dismiss an employee where: -An employee wilfully neglects to perform any work which it was his duty to perform, or if he carelessly and improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly.

57. The respondent admitted that he was unaware of the theft until the day guard, one Peter patrolled to site and noticed the same and declined to take over duty yet he testified that they patrolled the site till 6:00am and the supervisor and the alarm team did so as well.

58. From the evidence on record, the respondent and this colleague do not appear to have patrolled the site and could not have known of the theft, which implicates alertness and care with which they discharged their duties.

59. Was the respondent dishonest? The evidence on record suggests that the respondent was dishonest for having stated that they patrolled the site till 6:00am yet they do not appear to have done so and were not even aware of the theft.

60. It is the finding of the court the respondent was not only careless in the manner in which he discharged his duties, but dishonest too.

61. The appellant, in the court’s view had a substantive justification to dismiss the respondent summarily as it did.

62. The foregoing analysis disposes off grounds (a) and (b) of the Memorandum of Appeal.

63. As regards procedure, while the appellant submitted that it complied with the procedural requirements, the respondent maintained that he was not heard before dismissal from employment.

64. The respondent stated so in paragraph four (4) of the written witness statement on record and the court noted it in its judgment at pages 6 and 9.

65. Needless to emphasize, the procedural precepts contained in Section 41 of the Employment Act are mandatory. (See Pius Machafu Isindu V Lavington Security Guards Co. Ltd [2017] eKLR and the sentiments of Mbaru J. in Jane Samba Mukula V Ol Tukai Lodge Ltd [2013] eKLR that:“Where this procedure as set out under Section 41 of the Employment Act is not followed, then a termination that arises from it will be procedurally flawed. It is procedurally irregular…”

66. The employer shoulders the burden to demonstrate that the termination of employment or summary dismissal was fair, that the employee was aware of the reasons the employer was considering termination of employment, the charges were read out to the employee in a language the employee understood and in the presence of a colleague of the employee’s choice or a shop floor representative, right to be accompanied by a fellow employee of his/her choice and make representations and/or adduce evidence and finally the representation made by the employee and/or his/her representative be heard and considered in the determination of the matter. See Postal Corporation of Kenya Ltd V Andrew K. Tanui [2019] eKLR.

67. The appellants uncontroverted evidence was that the respondent was suspended and invited for a hearing vide letter dated 11th September, 2021 scheduled for 15th September, 2021.

68. The invitation letter set out the charges the respondent was to confront, contained a summary of the facts, as well as time and place of the meeting and attendant rights.

69. The appellant did not issue a notice to show cause for a preliminary response from the respondent before determining whether or not a hearing was necessary.

70. Intriguingly, the unauthenticated minutes on record indicate that the disciplinary hearing took place on 16th September, 2021.

71. According to the appellant, the provisions of the Employment Act and the relevant clauses of the appellant’s Disciplinary Code were complied with.

72. As already adverted to elsewhere in this judgment, since the minutes on record are unauthenticated they cannot be relied upon as evidence or record of what transpired at the hearing.

74. It therefore, follows, in the court’s view, that the appellant had no verifiable evidence to establish that it accorded the respondent an opportunity to defend himself a fact he contested.Put differently, how were the proceedings conducted?

75. Surprisingly, Mr. Stephen Owour, could not remember who the attendees of the meeting were yet he took and compiled the unsigned minutes.

76. Did the respondent, for instance respond to question only or was also given an opportunity to explain his case and rebut the charges against him?

77. Was the colleague who accompanied the respondent accorded an opportunity to make representations and were the representations by the claimant and/or the representative considered in decision making?

78. Finally, was a copy of the unsigned investigation report prepared by Mr. Jacob Olando, the appellants Operations Manager, Kisumu availed to the respondent to enable him prepare for his defence bearing in mind that he was suspended vide letter dated 11th September, 2021 pending further investigations?

79. Availment of documents or evidence to be relied upon by the employer in a disciplinary hearing, to the employee, is an integral part of the right to fair hearing as held in Postal Corporation of Kenya v Andrew K. Tanui (Supra), Ol Pejeta Ranching Co. Ltd V David Wanjau Muhoro (Supra) and Regent Management Ltd V Wilberforce Ojiambo Oundo [2018] eKLR.Under Section 45 of the Employment Act(4)A termination of employment shall be unfair for purposes of this part where(a)…(b)It is found that in all circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee.

80. Section 45(5) of the Act catalogues the factors the court takes into consideration in making the decision whether it was just and equitable to terminate, the employee’s employment, including procedure adopted by the employer, communication of the decision and handling any appeal among others.

81. The termination letter dated 21st September, 2021 makes no reference to the right of appeal, conduct of the employee, compliance with the provisions of the Act, including issue of certificate of service and Section 41 and previous warning letters.

82. The totality of the evidence in this case reveals that the procedure adopted by the appellant in dismissing the respondent from employment fell below the threshold of a fair one.

83. The foregoing analysis disposes off ground (c) of the Memorandum of Appeal.

84. Before addressing the contested reliefs, it is necessary to re-state the law on the effect of criminal proceedings on an employee undergoing internal disciplinary proceedings.

85. In Attorney General & Another V Andrew Maina Githinji & Another [2016] eKLR Waki JA stated:“In other cases where a plea was made that there was an intervening criminal process, it was held that the institution of criminal proceedings is not a bar to civil proceedings based in similar facts”.

86. Similarly, in James Mugera Igati V Public Service Commission [2014] eKLR Rika J. held as follows“The Claim rests on the question whether the Respondent was bound by the outcome of the criminal proceedings in the Nairobi Chief Magistrate’s Criminal Case Number 1602 of 2005 R V James Igati Mugeria. There is nothing in the repealed Employment Act Cap 226 the Laws of Kenya, and the Public Service Commission Regulations 2005 which applied to the dismissal of the Claimant from service, that suggest the disciplinary process, is tied to the criminal process that may arise from the same facts. Section 17 of the repealed Employment Act did not make disciplinary proceedings at the workplace subject to any criminal investigations, trial or convictions. The Claimant appears to confuse the disciplinary process, which is properly a private process between an employer and its employee, whose aim is to ensure the employer’s business is not harmed by delinquent employee behaviour, with a criminal trial which is a public process where prosecution is carried out by the state and is purposed on securing the safety of the general population, and on maintenance of a stable social order. This Court has expressed the view in the past that the two processes are independent of each other; the standards of proof are different; and an acquittal or conviction at the public process does not bind the employer in conduct of the disciplinary process. There is no provision in the old or the new Employment Act, or the Public Service Commission Regulations, which make it necessary for employers to follow police investigations, or findings, or indeed Criminal Court decisions, in resolving employment disputes based on cross-cutting facts.

87. The foregoing sentiments were upheld by the Court of Appeal in Geoffrey Kiragu Njogu V Public Service Commission & 2 Others [2015] KECA 161 (KLR).

88. These sentiments apply on all fours to the circumstances of this case.

89. The independent nature of criminal proceedings and internal disciplinary process being undertaken against an employee simultaneously or one after the other was highlighted by the Court of Appeal in KibeV Attorney General (Civil Appeal No. 164 of 2000).

90. See also Judicial Service Commission V Gladys Boss Shollei & Others (Supra), David O. Owino V Kenya Institute of Special Education [2013] KEELLRC 409 (KLR) as well as Gregory Kwabi Wekulo & 2 Others V Musoni Kenya Ltd (Supra), cited by the appellant’s counsel among others.

91. The foregoing jurisprudence leaves no doubt that the learned trial Magistrate fell into error by failing to appreciate that the criminal trial and the appellant’s internal disciplinary process are distinct process independent of each other and in holding that the two processes were conducted alongside each other, internal disciplinary proceedings do not supersede the findings of the court and the finding that the respondent was taken through multiple trials which prejudiced him.

92. The cases also show that the trial court erred in its finding that the summary dismissal after acquittal of the charges by a court of competent jurisdiction was unlawful, wrong and unfair.

93. On the reliefs decreed, the learned trail magistrate is faulted for making an award in damages for loss of employment.

94. Having found that the summary dismissal by the appellant was unlawful, wrong and unfair, the trial court was obligated to award compensation, not damages, and awarded 12 months as damages for loss of employment which was an error as the trial court ought to have styled it as compensation in accordance with the provisions of Section 49(1)(c) of the Employment Act (See Ken Freight (EA) Ltd V Benson K. Nguti [2019] eKLR).

95. Significantly, the trial court did not justify the award, which the appellant characterises as inordinately high and excessive.

96. See the sentiments of the Court of Appeal in Ol Pejeta Ranching Co. Ltd V David Wanjau Muhoro (Supra), on why the court intervened in the case and reduced the award of 12 months compensation to 6 months.

97. Those circumstances apply to the instant case and justifies the court’s interference with the exercise of the court’s discretion.

98. Considering that the appellant had a reason(s) to summary dismiss the respondent, as found earlier in this Judgment, he did not appeal the decision or express his wish to remain in the appellant’s employment and substantially contributed to the summary dismissal and taking into account that the respondent had served for over 28 years and had no recorded cases of misconduct, the court is satisfied that the equivalent of three (3) months gross salary is fair, Kshs.82,669. 47.

99. Concerning the one month’s salary in lieu of notice court is persuaded that having found that the summary dismissal was justified, the award is unjustifiable by dint of Section 44(1) of the Employment Act which allows an employer to dismiss an employee without notice or by a shorter notice than prescribed by law.

100. This justifies the court’s interference with the decision of the trial court.The award ought not to have been made.See Ephantus Mwangi & Another V Duncan Mwangi [1981 – 1988) IKAR 278.

101. The respondent did not render any service to the appellant in October, 2021 and the claim was properly declined.

102. As regards gratuity, the respondent provided no evidence to prove his entitlement to the award in that he did not establish its factual basis by way of a contractual term or a clause in a collective bargaining agreement.

103. The award lacks a factual and legal basis and ought not to have been awarded.

104. The absence of a basis for the award justifies the court’s interference with the decision. See Bell and another V Matterelo Ltd [2022] KECA 168 (KLR).In conclusion, the appeal is partially successful as follows:a.Award of one month’s salary in lieu of notice is set aside.b.Compensation for unlawful dismissal is reduced to the equivalent of 3 months gross salary, Kshs.82,669. 47c.Gratuity award of Kshs.1,064,046. 35 is set aside.d.Other awards are upheld.e.Parties shall bear own costs of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 27TH DAY OF MARCH, 2025. DR. JACOB GAKERIJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.