https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1393

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC APPEAL NO. E215 OF 2022 G4S KENYA LTD ………………………….……..………………………..…………...APPELLANT VERSUS CHARITY WAWIRA EDWARDS.….………………………………………………..RESPONDENT *(Being an Appeal from the* *Judgment and Decree of the Hon. S.A. Opande (PM) delivered at Nairobi on the 14th day of November, 2022 in CMEL No. E853 of 2020)* CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. S. A. Opande (PM) delivered at Nairobi on the 14th day of November, 2022 in CMEL No. E853 of 2020 between the parties filed a memorandum of appeal dated the 7th of December, 2022 seeking the following orders:- a. The appeal be allowed. b. The judgment of the Chief Magistrate's Commercial Courts at Milimani (Honourable S.A Opande) delivered on 14th November 2022, be set aside and substituted therefore with an order dismissing the suit against the appellant with costs. c. The costs of this appeal be awarded to the appellant. GROUNDS OF THE APPEAL 1. Based on the law and the evidence before the court the Learned Magistrate erred in failing to hold that there were fair and valid reasons to terminate the respondent's employment for the following reasons: i. The appellant adduced evidence to show that it dismissed the respondent after establishing that the respondent: ii. Was negligent in the performance of duties by switching off the DVR machine, which controlled the CCTV cameras at the Standard Chartered Bank ATM Lobby at Nairobi West, where the robbery took place. The respondent's negligence led to the appellant being unable to identify the robbers who made away with Kshs. 75,957,350.00; iii. Had admitted the offence; and iv. Was given an opportunity to be heard. 1. Having failed to consider the matters set out above, the Learned Magistrate erred in making an award for compensation for unlawful termination. 2. Without prejudice to the foregoing, even where compensation was payable, the award of 12 months' pay as compensation for unlawful termination is, in any event, inordinately high and excessive in the circumstances of this case. 3. The trial court erred in awarding the respondent one month's salary in lieu of notice in the circumstances. 4. The trial court also erred in making an award of gratuity pay as the employment contract did not provide for the payment of gratuity upon termination of employment. BACKGROUND TO THE APPEAL 1. The Respondent filed a claim against the Appellant vide a memorandum of claim dated the 23rd of September 2020 seeking the following Orders:- 2. A declaration that the Claimant was unlawfully dismissed from her employment and therefore entitled to payment of her terminal dues. 3. An order for the Respondent to pay the Claimant her terminal benefits and compensatory damages as particularized under Paragraph 19 Part B of this memorandum of claim. 4. Costs of this claim plus interests thereon. (Pages 4-8 of the ROA dated 7th December 2022). 1. In support of her claim, the Respondent filed her undated list of witnesses and a witness statement dated 23rd September 2020. She later filed her further list of witnesses dated 25th February 2021; witness statements of Lucas Opondo and Caroline Wanyoko of even date; and an undated list of documents with the bundle of documents attached (See pages 11-62 of ROA). 2. The claim was opposed by the Appellant, who entered an appearance and filed a statement of response dated the 14th of December 2020 (pages 63-68 of ROA). The appellant also filed a list of witnesses dated 14th December 2020; witness statements of Sheila Chebet and Collins Luvai dated 14th December 2020 and 11th December 2020 respectively; witness statement of Joseph Weru dated 16th November 2021; and index & bundle of documents dated 14th December 2020 (pages 69-151 of ROA). 3. The Respondent filed a Reply to Statement of Response dated 25th February 2021 to counter the Appellant’s response (pages 152-155 of ROA). 4. The Claimant/Respondent’s case was heard on 6 June 2022, with the Claimant giving evidence as PW1. She relied on her filed witness statement as her main evidence and presented her documents as exhibits. She was cross-examined by counsel for the Respondent/Appellant, Mr. Odiero (pages 2-5 of Supplementary ROA dated 24 October 2025). Two other witnesses, PW2 and PW3, testified on behalf of the Claimant on 18 August 2022. They each adopted their filed witness statements as their evidence in chief and were cross-examined by counsel for the Respondent/Appellant, Mr. Odiero (pages 5-9 of Supplementary ROA). 5. The Respondent/Appellant’s case was equally heard on 18th August 2022, with the Appellant calling one witness, Joseph Weru Wairimu, to testify on its behalf as DW1. He relied on his filed witness statement as the Appellant’s main evidence and produced the Appellant’s documents as exhibits. He was cross-examined by counsel for the Claimant/Respondent, Mr. Makaka (pages 9-11 of Supplementary ROA). 6. The Trial Magistrate Court delivered its judgment on the 14th of November 2022, allowing the Claimant’s claim in its entirety to the tune of Kshs. 1,028,963/- comprised of one month’s pay in lieu of notice, 12 months’ salary as compensation for unfair dismissal, and gratuity at 18 days salary for every year worked, plus costs of the suit and interest (Judgment at pages 288-291 of ROA dated 7th December 2022). DETERMINATION 1. The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 1. In their submissions dated the 13th of February 2026, the Appellant identified two issues for determination, namely:- * 1. Whether the Appellant proved that it had fair and valid reasons to terminate the respondent’s employment; and 2. Whether the respondents are entitled to the awards made by the trial court. 2. Upon receiving the Respondent’s submissions, the Appellants filed supplementary submissions dated 2nd March 2026. 3. On her part, the Respondent identified the following issues for determination in her submissions dated the 17th of February 2026: * 1. Whether the Learned Magistrate erred in law and in fact in finding that the Appellant was unfairly dismissed. 2. Whether the Appellant was entitled to the reliefs awarded by the trial court. 3. Who should bear the costs of the Appeal. 4. The court found consensus between the parties that the issues for determination in the appeal were – * 1. Whether the Appellant proved that it had fair and valid reasons to terminate the respondent’s employment; and 2. Whether the respondent was entitled to the awards made by the trial court. Whether the Appellant proved that it had fair and valid reasons to terminate the respondent’s employment; and 1. The grounds of appeal were - 2. Based on the law and the evidence before the court the Learned Magistrate erred in failing to hold that there were fair and valid reasons to terminate the respondent's employment for the following reasons: i. The appellant adduced evidence to show that it dismissed the respondent after establishing that the respondent; ii. Was negligent in the performance of duties by switching off the DVR machine, which controlled the CCTV cameras at the Standard Chartered Bank ATM Lobby at Nairobi West, where the robbery took place. The respondent's negligence led to the appellant being unable to identify the robbers who made away with Kshs. 75,957,350.00; iii. Had admitted the offence; and iv. Was given an opportunity to be heard. 1. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeaner of a witness is inconsistent with the evidence in the case generally Historical events leading to the suit before the trial court 1. The respondent was issued with a suspension letter dated 8th October 2019 which disclosed the reason for the suspension to be-‘ ‘That on the night of 4th September 2019 at G4S offices at Witu road, while assigned duties at control room, you Intentionally and deliberately switched off CCTV cameras which could have enabled identification of roque police officers who accessed the premises and thereafter committed a robbery at Nairobi West. Your above actions clearly demonstrate gross negligence of your role and a breach of the CIT Procedures.’ 1. What followed was a letter of invitation to disciplinary dated 8th October 2019 with 2 charges as follows- ‘ ‘1. Gross negligence in performance of duties On the night of 4th September 2019 at G4S offices at Witu road, while assigned duties at control room, you intentionally and deliberately switched off CCTV cameras which could have enabled identification of rogue police officers who accessed the premises and thereafter committed a robbery at Nairobi West. 2. Conspiracy to commit a felony On the night of 4th September 2019 at G4S premises at Witu, road, you aided and abetted the commission of an offence of robbery by intentionally switching off CCTV cameras.’’ The letter further outlined the respondent's rights. (page 44 and 45 of ROA). 1. The appellant issued the respondent with a verdict of summary dismissal vide letter dated 28th October 2019 which stated the reason for summary dismissal as follows- ‘Dear Charity, RE: SUMMARY DISMISSAL The disciplinary hearing held at G4S Head Office on 15th October 2019 established that while assigned duties as a CIT control room operator you performed your duties negligently by deliberately switching off the CCTV cameras which assisted in concealing the identities of robbers who robbed G4S Crews at Nairobi West of cash amounting to Ksh. 74,483,000, 38 cassettes, 13 Purge bins and 13 canvas bags all totalling to Ksh. 75,947,350 at Standard bank ATM at Nairobi West. You're above actions amount to gross misconduct. This letter therefore serves to advise that you have been dismissed from the services of the company with effect from the date of this letter as per section 44 (c) of the Employment Act 2007. "an employee wilfully neglects to perform any work which it was his duty to perform or if he carelessly or improperly performs any work which from its nature it was his duty, under his contract, to have performed carefully and properly"(page 46 of ROA) 1. The respondent filed an internal appeal against the decision of the appellant, but the verdict was upheld, leading to the filing of the suit dated 23rd September 2020 alleging unfair termination. The court, on re-evaluation of the evidence, found that the respondent admitted to having switched off the power to the DVR on basis that this was standard operating procedure to cool the computers. That the power sockets were not marked to be of the CCTV. The respondent told the trial court they were only marked after the incident. 2. In response, the appellant stated the respondent was negligent in switching off power to the DVR machine which was controlling the CCTV camera, which led the respondent not to be able to identify the theft culprits, who, it was stated, were rogue police officers. The DVR machine was located at the respondent’s cash in-transit control room, and it was confirmed that the same was switched off on 4th September 2019 by the respondent. The respondent admitted having switched off the machine, and the theft happened thereafter on 5th September 2019. The respondent stated that footage of previous days and months preceding the robbery incident showed the DVR machine had not been switched off on those days, when the respondent was on duty.(page 64 of the ROA) The respondent called witnesses who corroborated her evidence that the power sockets were not marked to be of CCTV and were only marked after the incident . The witnesses also confirmed they would switch off the computers, and there was communication to that effect. 3. Further, the witness for the appellant told the trial court that there were no directions for the sockets to be switched off, the DVR machine was working the previous day but not on the material date of the robbery. That it was switched off on the day of the incident. During the cross-examination, the witness told the court that the DVR that was switched off was controlling the DVR parking yard CCTV, Nairobi West. He also testified that the camera at the Stanchart ATM parking yard identified the suspects. That switching off the CCTV camera is abating crime. Further, the appellant's witness told the trial court that in May 2019 only 17 days were recorded, for 13 days the camera was not recording. That on 3rd September 2019 the camera was not recording. The witness confirmed that the camera was not switched off, only on the day of the incident. On re-examination, the witness stated the foregoing did not take away the claimant’s fact of switching off the camera on the day of the robbery incident. 4. The trial court held as follows-‘I have considered the evidence. First, it is not in dispute that the switches were an integral part of the respondent's operations. Secondly, the switches had been previously in a space where the claimant would not have interfered with. Further, it has not been disputed that they were else where in the control room and were only brought to where the computers were operated after they had malfunctioned. In addition, the technicians who allegedly moved the cameras were never called to shed light as to whether the rest of the staff was informed of the presence of the CCTV switches at the computer area. Finally, there is evidence that there had previously been no recordings for 13 days in May 2019 and on 3rd September 2019 just a day before the claimant allegedly switched of the switches. It has not been clearly brought out why when the switches were off, the same would not be detected. I find the claimant to have been a victims of lapses by the respondent ICT technical team to have failed to recognize the sensitivity of the CCTV switches and failed to have informed the claimant and the rest of the team where they were and how anyone else working in their proximity was to interact with them. If the cameras were not working on 3rd September 2019, we are not sure if they had been switched of at that time with someone other than the claimant.’(page 290 of ROA). 5. The appellant submits that the contention by the respondent that she believed to have been turning off computers for "housekeeping" reasons is untenable. Even if that were true, it was reckless for an experienced operator to blindly interfere with electrical systems in a high-security environment without verification. Given the respondent's long experience in the control room, the argument that she did not know the purpose of the power switch should have been difficult to accept. 6. The learned magistrate took issue with the fact that the power socket for the DVR Machine had been previously placed where the respondent would not have interfered with it. The appellant submits that the above claims were made by respondent's witness, Lucas Opondo. This allegation was denied by the appellant's witness, Joseph Weru who testified that the DVR Machine was at the National Communication Centre, which is the same location as where the computers sockets were placed. The appellant contended that even if the DVR's power source had been relocated, the respondent was aware that CCTV systems were critical and were normally kept running at all times. By her own testimony, she was the only person on night duty in that control room at the relevant times. There was no evidence that any other employee entered the room and interfered with the equipment. Her speculative suggestion that someone else might have turned off the cameras on 3rd September, made for the first time at trial, was not backed by a shred of evidence. That the learned magistrate's apparent acceptance of that speculative possibility was a clear error. The appellant submitted that trial court's criticism that the appellant failed to label the CCTV power switches or inform the respondent of their function reflects a misunderstanding of the security measures reasonably in place. It is neither practical nor advisable to label or advertise the critical infrastructure (such as a CCTV's power source) to all personnel. As the appellant's witness Mr Joseph Weru explained, the CCTV's power socket was kept in an area accessible only to authorised personnel (like the respondent), and it was not marked specifically to avoid drawing attention to it. This was a conscious security decision to prevent malicious actors from easily identifying and sabotaging the system. The appellant submitted that the DVR was switched off on 4 September 2019 at 23:07 (during the respondent's shift) and switched on the next morning at 06:31, after the heist was over. The only camera feed lost was the one covering the robbery scene. This timing is highly suspect. The coincidence of an unprecedented CCTV outage on the very night before a major theft strongly infers that the outage was no accident. The trial court placed heavy reliance on the recordings of May 2019. He stated that, 'there is evidence that there had previously been no recordings for 13 days in May 2019 and on 3rd September 2019 just a day before the respondent allegedly switched off the sockets. It has not been clearly brought out why when the switches were off, the same would not be detected... if the cameras were not working on 3rd September 2019, we are not sure if they had been switched off that time with someone other than the claimant. A review of the CCTV footage [page 143 to 147 of the record], shows that for July to September 2019, the months preceding the robbery incident, the DVR Machine had not been switched off. This led the appellant to reasonably and genuinely believe that the respondent was aware that the socket she had switched off was for the DVR Machine controlling the CCTV camera. That while the trial court faulted the appellant for not detecting the 13 isolated non-recording days in May 2019, this finding does not absolve the respondent of liability for the incident of 4th September 2019. The unchallenged evidence demonstrates that from July to August 2019, there was a complete absence of any switch-offs or DVR interruptions, thereby establishing a clear pattern of consistent CCTV functionality. It is therefore greatly suspicious and wholly inconsistent with prior months that the DVR was switched off immediately before the theft, and again shortly thereafter. The May 2019 anomalies which were neither attributed to human interference nor linked to any pattern of switching off sockets cannot serve as a shield for the respondent. The determinative fact is that the only deliberate and documented socket switch-offs coincide precisely with the night of the theft, pointing irresistibly to negligence or worse, complicity on the respondent's part. Consequently, the trial court erred in treating the May non-recordings as diminishing the respondent's culpability. The proximity and suspicious switch offs in September remain squarely attributable to the respondent and formed proper basis for liability. The evidence presented directly contradicts the respondent's claim that she routinely switched off what she "believed to be computer sockets" at the end of every shift. The pattern is clear; only the dates surrounding the robbery show interference, rendering her explanation implausible. 7. The appellant further submitted that the respondent did not adduce evidence that the sockets were indeed moved prior to the incident. Instead, the respondent relied on the testimony of Caroline Wanyoko to argue that there was no way that the respondent could know that the sockets were connected to the DVR and that it was after the incident that the respondent marked the sockets. The appellant further submitted that respondent and Ms Wanyoko both confirmed during cross examination that the markings on sockets that were produced as respondent's exhibit 12 (see page 53 of the record) were made by a colleague of theirs and not the respondent's management. The respondent further failed to produce a certificate of electronic evidence, leaving the Court unable to ascertain who took the photographs or to verify the exact location of the sockets depicted. The appellant relied on the decision of the Supreme Court case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR,"The person who makes such an allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one and is a requisite response to an already-discharged initial burden. "The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue" [Cross and Tapper on Evidence, (Oxford University Press, 12th ed, 2010, page 124)], " In his judgment, the learned magistrate held that-‘ I find the claimant to have been a victim of lapses by the respondent ICT Technical team to have failed to recognise the sensitivity of the CCTV switches and failed to have informed the claimant and the rest of the team where they were and how anyone else working in their proximity was to interact with them. If the cameras were not working on 3rd September 2019, we are not sure if they had been switched of at those times with someone other than the claimant.' With respect, this finding, the appellant submitted that the trial court is misdirected both factually and legally. It wrongly places on the appellant an obligation to disclose the location and operation of sensitive security infrastructure to all staff, including those whose roles do not require access to or manipulation of the system. The learned magistrate also speculated, without evidentiary basis, that an unidentified third party might have been responsible for switching off the cameras, a theory unsupported by the record and contrary to the respondent's own admission that she was on duty and in proximity to the switches on the material dates. In effect, the learned magistrate shifted responsibility away from the respondent and replaced clear, uncontroverted evidence with conjecture. 8. The appellant further submitted that it is undisputed that the National Communications Centre is a high-security environment, handling sensitive data integral to the appellant's Cash-in-Transit operations. As Mr. Joseph Weru testified, the appellant could not place signage or warnings identifying the socket powering the DVR because doing so would expose the CCTV infrastructure to malicious interference by any employee with ill motive. Similarly, for security purposes, the appellant could not publicly disclose which switch controlled the CCTV system. Revealing this information broadly would undermine the very essence of the surveillance apparatus which is to operate discreetly and securely so as to prevent tampering, disablement, or manipulation. Accordingly, the respondent cannot rely on non-disclosure as a defence. The appellant's security protocol was reasonable and expressly designed to protect the integrity of the CCTV system. The respondent's duty was simple and clear; not to interfere with equipment she neither understood nor was authorised to manipulate. Based on the foregoing, the appellant submits that it has been able to show that it genuinely believed that there were reasonable and sufficient grounds to terminate the respondent's employment. The Court of Appeal in Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another [2017] eKLR upheld the use of the reasonableness test and held that if a reasonable employer might have reasonably dismissed an employee, the dismissal was fair. The appellant submits that it had valid cause to terminate the respondent's employment and urges this court to set aside the learned magistrate's finding that no valid and fair reason existed to warrant the termination of the respondent's employment. 9. Conversely, the respondent to support the assertion that the reason for termination was unfair submitted as follows - Through its letter dated 28th October 2022, the Appellant summarily dismissed the Respondent on the allegation that she had negligently performed her duties by deliberately switching off CCTV cameras, thereby allegedly concealing the identities of robbers who attacked a G4S crew at the Standard Chartered Bank ATM in Nairobi West. The main reason for terminating the Respondent was alleged negligence. Negligence is the breach of duty of care, whereby there must be demonstration that an act or omission breached such duty from the conduct expected of a reasonable prudent person under similar circumstances. In the case of Donoghue v Stevenson, Lord Atkin defined negligence as the breach of a legal duty of care owed to another, stating that, ‘….You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour..’ As such, the Respondents submits that in assessing negligence then it’s prudent to analyze whether the Respondent could reasonably have foreseen the harm. In the case of Caparo Industries plc v Dickman the House of Lords set out a three-part test refining how a duty of care attaches, it held; a. The damage must be reasonably foreseeable; b. There must be a relationship of proximity between the parties; c. It must be fair, just and reasonable to impose a duty of care. It is thus, the Respondent’s submission that negligence arises where a party owes a duty of care to another, breaches that duty, and thereby causes damage. A duty of care attaches where the harm complained of is reasonably foreseeable, there exists sufficient proximity between the parties, and it is fair, just and reasonable to impose such duty. The respondent further relied on the decision in Donoghue v Stevenson and later refined in Caparo Industries plc v Dickman. The Respondent submits that the Appellant has failed to establish that the alleged negligence stemmed from any breach of a duty of care owed by the Respondent, or that the harm complained of was reasonably foreseeable. In expounding why the Respondent believes that her impugned actions were not negligent, or she could in no way reasonably have foreseen the damage, it is crucial to first highlight the misrepresentation of facts by the Appellant, which is being relied to erroneously attribute negligence liability to the Respondent. The Respondent refutes paragraph 11, 12 and 13 of the Appellant’s submissions dated 13th February 2026 since the Appellant misrepresents the facts by alleging that the Respondent switched off the CCTV controlling the Standard Chartered Bank ATM parking yard where the robbery occurred. This is however incorrect as the Respondent was based at the Appellant’s headquarters on Witu Road and the switch the Respondent was allegedly accused of operating allegedly related solely to the Appellant’s parking yard at Witu Road, not the Standard Chartered Bank ATM located in Nairobi West. This appears to be a deliberate attempt by the Appellant to attribute negligence on the Respondent, the true position is further clarified below: At paragraphs 4 and 5 of the Confidential Investigation Report Ref: G4S /S/R/NV/27/2019 (hereinafter referred to as the ‘investigative report’) by the Appellant (located at page 111 of the record of appeal dated 7th December 2022), the Appellant, after conducting investigations into the incident, makes the following findings; that the CCTV covering the parking area was allegedly switched off. Nowhere in these findings is it indicated that the CCTV in question was covering the Standard Chartered ATM at Nairobi West. Further, at paragraph 18 of the investigative report thereof, under the findings (located at page 112 of the record of appeal dated 7th December 2022), the Appellant finds that the Respondent allegedly switched off the CCTV camera covering the yard. Again, there is no mention that this CCTV was allegedly covering the standard Charted Nairobi West ATM. Moreover, at paragraph 5 of the investigative report, under the recommendations and actions (located at page 112 of the record of appeal dated 7th December 2022), the Appellant recommends the punishment of the Respondent for allegedly “switching off the CCTV DVR at the control room covering the G4S Yard”. There is also no mention that the Respondent allegedly switched off the CCTV camera covering the Standard Chartered Nairobi West ATM. It is important to note that these are two geographically distinct locations. The robbery occurred at the Standard Chartered Nairobi West ATM and not at the G4S Yard, at its headquarters, where the Respondent was deployed at the time. This misrepresentation by the Appellant appears aimed at attributing liability for negligence to the Respondent in circumstances where such liability does not properly arise. Further, at paragraph 1 of the Notice of Disciplinary Hearing dated 14th October 2019 (located at page 115 of the record of appeal dated 7th December 2022), the charge/offense against the Respondent is stated as gross negligence in the performance of duties, particularizing that: “…on the night of 4th September 2019 at G4S offices at Witu Road, while assigned duties at the control room, you intentionally and deliberately switched off CCTV cameras which could have enabled identification of rogue police officers who accessed the premises and thereafter committed a robbery at Nairobi West” . Also, no mention that the Respondent allegedly switched off the CCTV camera covering the Standard Chartered Nairobi West ATM. The robbery happened at the Standard Chartered ATM in Nairobi west and not at the G4S yard where the Respondents headquarters sits and where the Respondent at the time was deployed. This misrepresentation by the Appellant is in fact meant to unfairly apportion liability on negligence on the Respondent in an instance where it does not simply attach by trying to imply that the Respondent switched off the CCTV which was operational at the scene of crime, allegedly to enable concealment of the robbers who robbed a Standard Chartered ATM in Nairobi West. A misrepresentation that the evidence on record firmly refutes. During cross-examination of the Appellant’s witnesses, Mr. Weru affirmed that the suspects who carried out the heist were apprehended and charged, and that there is an active criminal case pending against them. He further confirmed that this was made possible because the cameras at the Standard Chartered Bank ATM successfully identified the suspects. As reflected at page 10 of the Supplementary Record of Appeal dated 24th October 2025, the Appellant’s witness on cross examination affirmed this position testifying on oath that, ‘..The suspects were arrested and there is an active case in court. The camera at Stanchart ATM parking yard identified the suspects…’ Furthermore, through the cited confidential Investigative Report, Ref: G4S /S/R/NV/27/2019 at page 106 and 107 of the record of appeal dated 7th December, 2022 under paragraph (i) of the report, the Appellant indicates,‘…At 0618hrs, two of the police officers who had escorted the crews attacked the crew within the ATM Lobby and stole the ATM residue……..The attack was clearly captured by the CCTV within the ATM lobby……The Respondent submits that the Appellant appears to shift goal posts on the charge against her, the initial allegation was that she had switched off the parking yard camera at the G4S Headquarters on Witu Road, the allegation inexplicably metamorphosed into her being accused of switching the CCTV cameras at Standard Chartered Nairobi west ATM. The evidence and the pleadings of the Appellant are at variance and the Appellant has misrepresented facts to mislead this Honorable court into apportioning liability of negligence to the Respondent. The Appellant has consistently altered its position in a manner that appears calculated to mislead and manipulate the facts so as to favour its case and portray the Claimant in a negative light. From the foregoing, it is the Appellant’s submission that the evidence adduced does not establish that the alleged camera switch controlled the CCTV camera located at the Standard Chartered Bank ATM in Nairobi West. More so, the evidence presented by the Appellant in the trial court which is the alleged DVR logs (located at page 143 to 146 of the record of appeal dated 7th December, 2022) to support the allegation that the Respondent allegedly switched off CCTV cameras that aided in the robbery failed to hold the probative value due to the following reasons espoused here below; The alleged electronic DVR logs were not produced by their makers, thereby contravening the requirements of Sections 64 to 68 of the Evidence Act, which provide that the original document (primary evidence) must be produced to prove its contents, and that secondary evidence (copies) is admissible only if the original is lost, destroyed, or otherwise unobtainable. In the present case, the so-called evidence of the DVR logs was based on an electronic photocopy of a report that was neither certified nor produced by the original maker. The electronic evidence further demonstrates that from the DVR logs, the alleged CCTV cameras were not continuously operational, even during periods when the Respondent was not on duty. Specifically, in May 2019, the alleged cameras were off for thirteen (13) days without any explanation from the Appellant on why this happened. This was conceded to by the Appellant’s witness on cross examination as is reflected at page 11 of the supplementary record of appeal dated 24th October, 2025. In September 2019, there was an alleged switch-off on 3rd September 2019, there was no explanation as to why this happened. It is the Respondent’s case that on the night preceding the incident, after logging off her computers as part of her routine duties, she switched off all computer switches, as was her normal practice. She later became aware that one of the switches was allegedly a CCTV camera switch controlling the parking yard camera at the Appellant’s headquarters. The Respondent submits that she was not negligent in her actions. Firstly, because, the CCTV camera in question allegedly controlled the parking yard at the Respondent’s headquarters, not the location where the robbery occurred in Nairobi West. Secondly, there were no markings or notices on the alleged switch to differentiate it from the other switches. In fact, the notice identifying the switch as a CCTV camera was only placed on 7th September 2019, after the incident which occurred on 5th September, 2019. A photograph of the alleged switch was produced and is now contained at page 53 of the record of appeal dated 7th December, 2022. Thirdly, there were no memos, standard operating procedures, notifications, or training provided to the Respondent to indicate that the alleged switch was in fact a CCTV camera switch that should never be switched off. The operation (including switching on and off) surrounding this alleged switch did not form part of the Respondent’s job description. This lack of instruction was corroborated by the Respondent’s witnesses, including her second witness, who was the Respondent’s Supervisor, it was also conceded to on cross examination of the Appellants’ witness. The Appellant has produced no evidence to demonstrate that the Respondent had actual knowledge that the switch she operated controlled a CCTV camera. Fourthly, on the alleged logs suggesting that the switch was turned off only on the date of the robbery was controverted on cross examination by the fact that there was a prior pattern of the alleged switch being turned off inadvertently, including during the month of May 2019, demonstrating that it was not true that the switch was only turned off on the day of the robbery. The Respondent acted in accordance with a management memo advising employees to switch off computers after duty to conserve memory and enhance system efficiency, which was the sole reason she switched off the switch. This fact was corroborated by the Respondent’s witnesses, including an immediate supervisor. Furthermore, given that this issue directly concerns the Standard Chartered Bank ATM, it would have been prudent for the Appellant to enjoin a representative of Standard Chartered Bank as a witness to produce the Bank’s investigation report and to confirm whether it was in accordance with its policy for the Appellant to allegedly install a camera at their ATM. Keeping in mind that the Appellant was only a service provider of Standard Charted Bank and not their employee and service providers change from time to time. In particular, the Respondent questions whether it was permissible for such a camera’s switch to be concealed and operated from the Appellant’s headquarters, without any marking, Standard Operating Procedures (SOPs), or differentiation from other computer switches (see photograph of the switch at page 53 of the record of appeal dated 7th December, 2022). The evidence on record further demonstrates that staff were neither apprised of nor informed which switch controlled the camera. 44.The Appellant concedes at paragraphs 49 to 53 of its submissions dated 13th February 2026, that it did not disclose the identity of the said switch to the Respondent. In those circumstances, it is the Respondent’s humble submission that it would have been impossible to reasonably foresee that switching off an unidentified and unmarked switch would occasion any danger. Notably, the switch was properly marked only after the incident on 7th September, 2019 (see photograph at page 53). If, as alleged, identifying the switch posed a security risk, the Respondent questions why it was subsequently labelled after the fact. Such conduct undermines the Appellant’s assertion that disclosure or identification of the switch would have compromised security. The Respondent submits that an employee could not reasonably be expected to understand that a particular switch was required to remain on at all times in the absence of any communication to that effect, inclusion in the applicable SOPs, or any express instruction or provision in the employee’s job description. It is under such basis that the Respondent pleads that reasons for her termination were not fair and were not adequately proven by the Appellant considering that the alleged switch was placed at the same position with other computer switches, looking identical and without any differentiation whatsoever. It is the Appellant’s submission that without any form of marking, it would take a miracle for anyone to differentiate such switches 48. Section 44 of the Employment Act, 2007 provides for summary dismissal and sets out the threshold for such action. The Respondent submits that she did not commit any act of gross misconduct, nor is there any evidence that she breached the terms of her contract. Her only alleged error, if any, was switching off the said switch, which was indistinguishable from other computer switches and had no marking or notice.The Respondent respectfully submits that her conduct was entirely innocent, did not contribute to the harm occasioned and cannot amount to gross misconduct. There is no evidence that the Respondent contravened any of the provisions of Section 44 of the Employment Act, 2007. Following the robbery, and as part of the investigations, the Respondent was arrested, subjected to a forensic inquiry, and subsequently released without any charge. There was no connection between the Respondent and the suspects who were charged in Milimani Chief Magistrate Criminal Case No. 1548 of 2019. Even if it were alleged that the Respondent had aided in the commission of the crime, such conduct would constitute a criminal offense punishable by law. It is therefore illogical that the police, after conducting a full investigation, cleared the Respondent of any wrongdoing. It is only plausible to draw the inference that there was no causal connection between the Respondent’s alleged actions and the robbery. It is therefore the submission of the Respondent that, due to the Appellant’s failure to prove the allegations of negligence and gross misconduct, the termination of the Respondent’s employment was without a fair reason and was procedurally unfair. The termination is in contravention of Sections 43 and 44 of the Employment Act, 2007, which provide that an employer may only terminate employment for a fair reason and that there must be proof of such reasons. The burden of proving the reasons for termination lies on the employer, this position was well founded in the supreme court case of Kenfreight (EA) Limited v Benson K. Nguti [2016] eKLR. 10. The appellant further filed written submission in reply to the foregoing submissions of the respondent to the above as follows- The appellant submits that the respondent's submissions do not answer the Memorandum of Appeal and further reiterates that the decision of the lower court is vitiated by errors of law and principle apparent on the record. The respondent's submissions largely re-state her version of the evidence and invite this Honourable Court to affirm the judgment merely because the trial court accepted her narrative. With respect, this is not the role of the appellate court. The appellant has demonstrated that the trial court misapplied the law, failed to apply the correct statutory tests and reached conclusions unsupported by and/or inconsistent with the evidence. This principle is well settled in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, where the Court of Appeal held that an appellate court will interfere where the trial court failed to properly evaluate the evidence or applied wrong principles of law. The respondent's submissions do not meaningfully engage with the specific errors pleaded in the Memorandum of Appeal, particularly regarding: The burden of proof under sections 43 and 45 of the Employment Act, b) The correct test for negligence and gross misconduct (Ground 2);c) Procedural fairness Ground 4); and) The legality of the remedies awarded SIGNAT ded (Grounds 5, 6 and 7)Alleged denial of a fair hearing. At paragraph 9 of her submissions, the respondent asserts among others, that the root cause of the dispute is that the termination was unlawful and/or unfair in that the respondent was not 'accorded a fair substantive hearing prior to the termination'. This assertion is unsupported by the pleadings, the evidence, and the judgment, and cannot be relied upon to sustain the impugned decision. Although the respondent generally alleged unfair termination before the trial court, she did not plead any specific procedural breaches under section 41 of the Employment Act, such as denial of notice, denial of representation, or refusal to hear her explanation. The remit of this court's appellate jurisdiction in this case is with reference to the memorandum of appeal filed by the appellant in which the challenge is as to the failure by the learned magistrate to hold that there were fair and valid reasons to terminate the respondent's employment and, in that regard, to set aside the award in question (paragraph 4 of the Memorandum of Appeal, page 1 of the Record of Appeal).The gravamen of the respondent's case was that she was not negligent, not that the disciplinary process was procedurally defective. More importantly, the learned Magistrate did not find that the disciplinary process violated section 41 of the Employment Act. The judgment expressly acknowledges that a disciplinary hearing was conducted and that an appeal hearing followed. The finding of unfair termination was grounded solely on the court's view that negligence was not proved (page 290 of the Record). Had the respondent wanted this court to consider other grounds, she ought to have filed a cross appeal. Having failed to do so, she cannot now introduce a procedural challenge through submissions. It is settled law that a respondent cannot on appeal introduce a new basis for defending a judgment that did not form part of the trial court's determination. See Independent Electoral & Boundaries Commission v Stephen Mutinda Mule & 3 Others [2014] eKLR. On Duty of Care the appellant submitted that the respondent contends that she owed no duty of care regarding the DVR because she allegedly lacked training or SOPs. This submission misstates the law on negligence and the nature of the respondent's role. It is uncontested that the respondent worked at the National Communication Centre, a core hub in the Appellant's cash-in-transit security operations. The learned Magistrate erred by treating the Respondent as a clerical employee, rather than one occupying a security-sensitive role demanding heightened caution. The Courts have held that employees in safety-critical roles owe a higher duty of care proportionate to the risk environment. Contrary to the respondent's submissions, the duty of care is objective. The respondent's submissions incorrectly suggest that negligence can only arise where an employee has express training or written SOPs. The authorities cited by the respondent support the appellant's submission that negligence is assessed objectively, by reference to what a reasonable employee in the same position would have done. In CMC Aviation Ltd v Mohammed Noor [2015] eKLR, the Court of Appeal held that an employer is entitled to discipline an employee whose conduct exposes the employer to serious risk, even where the employee claims lack of intent or ignorance. The learned Magistrate erred by collapsing the test into the respondent's subjective belief and failing to ask whether a reasonable control room operator in a security critical environment ought to have appreciated the risk of disabling equipment. Switching off of the CCTV Camera- At paragraphs 16 to 25 of her submissions, the respondent accuses the appellant of misrepresenting facts by alleging that she "switched off the CCTV controlling the Standard Chartered Bank ATM". With respect, this allegation is itself misleading and does not reflect the appellant's case as pleaded, proved, or determined before the trial court. At paragraph 11 of its submissions, the appellant stated that 'as part of the investigation, the Security and Risk Manager, Cash Services, reviewed the CCTV camera monitoring the Standard Chartered ATM parking where the robbery incident occurred. The CCTV camera was controlled from a DVR machine located at the appellant's Cash in Transit control room. The appellant has never alleged that the respondent physically switched off CCTV cameras located at the Standard Chartered Bank ATM. The appellant's case, as borne out by the investigation report, disciplinary proceedings, witness statements, and minutes on record, was that the respondent switched off power to a DVR located at the appellant's National Communication Centre, which DVR formed part of the appellant's central security monitoring infrastructure supporting cash-in-transit operations, including the Standard Chartered Bank ATM deployment. During cross-examination, the appellant's witness, Joseph Weru, confirmed that the DVR at the appellant's headquarters directly recorded and provided surveillance coverage of activities at the Standard Chartered Bank ATM at Nairobi West, and was not limited to the appellant's internal premises alone (page 10 and 11 of the supplementary record). The respondent's attempt to recast the appellant's case as alleging physical interference with ATM-site CCTV equipment diverts attention from the real issue on appeal which is as pleaded in Grounds 1 and 2 of the Memorandum of Appeal, is whether the learned Magistrate erred in law by holding that the respondent bore no responsibility for disabling a critical security system in a high-risk operational environment. The respondent's submissions at paragraphs 16 to 25 therefore do not demonstrate any misrepresentation by the appellant but instead seek to re-frame the factual matrix in a manner inconsistent with the documentary and evidentiary record. While it is acknowledged that the perpetrators were ultimately identified through alternative CCTV footage, this does not negate the respondent's negligence or the appellant's reasonable belief that her conduct materially compromised its security operations. Causation- The respondent argues that the robbery would have occurred regardless of the DVR being switched off. The appellant never alleged that the respondent committed the robbery, but that her conduct disabled a critical surveillance layer and materially compromised the appellant's ability to detect and investigate the crime. On Admissibility of the DVR logs- The respondent at paragraph 31 to 32 of her submissions now challenges the admissibility of the DVR systems logs relied upon the appellant on the grounds that the logs were not produced by their maker. This objection is procedurally barred, legally untenable, and factually dishonest, when tested against the record. The logs in question were produced as part of the appellant's documentary bundle, including: the system/DVR logs, a) the investigation report, and b) the disciplinary proceedings and minutes, all of which are contained in the Record of Appeal. The respondent did not object to the production or admissibility of the logs at the point they were tendered. On the contrary, the respondent: a) cross-examined the appellant's witness on the contents of the logs (page 10 to 11 of the supplementary record); and) relied on the logs to advance her defence (see paragraph 14 of the respondent's submissions before the trial court at page 169 of the Record). It is settled law that a party who fails to object to admissibility at trial waives the objection and cannot resurrect it on appeal after the evidence has been admitted, tested, and relied upon. See the Court of Appeal decision in Kenya Hotels Limited vs. Oriental Commercial Bank Limited [2019] eKLR. It is impermissible for the respondent to approbate at trial and reprobate on appeal by accepting evidence when convenient and rejecting it when it becomes unfavourable. The logs were not speculative or forensic reconstructions; they were system-generated operational records produced in the ordinary course of the appellant's security operations. They formed part of the contemporaneous documentation relied upon during the internal investigation and the disciplinary hearing. They were produced through a competent witness and contextualised within the investigation and disciplinary documentation attached to the Record. The purpose of a section 106B certificate is limited: it confirms that the electronic record has been produced from a reliable source and has not been tampered with. It does not concern the content of the evidence, which the respondent was free to challenge through cross-examination. In the absence of a contemporaneous objection, there was no obligation on the appellant to go further and litigate technical compliance with electronic-evidence formalities that were never in issue at trial. Clearance by the Police and Criminal Liability-The respondent at paragraph 50 and 51 of her submissions relies on the fact that she was released with no charge and asserts that this confirms that there was no causal connection for the respondent to the robbery. The outcome of the criminal investigation is irrelevant to the respondent's internal disciplinary process, which only sought to establish the claimant's negligence, not her criminal liability. The Court in Nelson Mwangi Kibe v Attorney General [2003] KECA 194 (KLR) when dealing with a dismissal that was being challenged on account of the appellant being acquitted held that: "Notwithstanding the acquittal in the criminal trial an award of punishment including dismissal as had happened may still be imposed to discipline him... There is a submission made before the superior court on behalf of the appellant that because the dismissal letter went to him long before the judgment in the criminal case that made the dismissal unlawful. We do not take this to be the correct way to view the matter because the dismissal was not founded on the criminal culpability of the appellant. It was based on his being liable for neglect of duty. The decision to dismiss the appellant for negligence did not have to await the verdict in the criminal trial and accordingly nothing attaches to the fact that the letter of dismissal preceded the judgment in that case." The Court of Appeal in Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR) confirmed that there was a distinction between internal disciplinary proceedings of an employer and criminal proceedings and that the internal disciplinary proceedings are anchored on the contract of employment where the standard of proof is reasonable belief and balance of probability, while in criminal proceedings, proof beyond reasonable doubt is required. The Respondent's reliance on police clearance does not negate her duty of care or absolve her of employment related negligence. The respondent was dismissed for gross negligence, not for committing the robbery. Her non-prosecution has no bearing on the appellant's contractual and statutory rights as an employer. 11. I upheld the submission by the appellant in Kenfreight (E.A.) Limited v Benson K. Nguti [2016] eKLR, where the Court of Appeal held that an appellate court will interfere where the trial court failed to properly evaluate the evidence or applied wrong principles of law. The court on re-evaluation of the evidence before the trial court found that the trial court did not err in fact in holding that - ‘I find the claimant to have been a victims of lapses by the respondent ICT technical team to have failed to recognize the sensitivity of the CCTV switches and failed to have informed the claimant and the rest of the team where they were and how anyone else working in their proximity was to interact with them.’ The employer ought to put in place instructions to the employees on how they are to work and operate machines. The respondent admitted switching off the computers, and this was corroborated by 2 other employees who said they had been instructed to do so to cool the computers. Further, it was not denied the appellant had moved the switches and failed to issue instructions on operations. The evidence of the respondents and her 2 witnesses that the sockets were labelled after the incident was unshaken even without the photos which the appellant challenged for lack of certification. There was evidence of the socket of the CCTV having been switched off the previous day and several days in May, as admitted by the appellant’s witness. The act of 4th September 2019 of the respondent switching off the socket was thus not isolated, and no action had been taken by the employer before on the switching off. The theft incident was unfortunate, but it was unfair to only pick on the respondent while there was no practice of disciplinary action against employees for having switched off the DVRs in May and 3rd September. Negligence could not be attributed to the respondent by a reasonable employer. Donoghue v Stevenson, Lord Atkin defined negligence as the breach of a legal duty of care owed to another, stating that, ‘….You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour..’ There was no evidence before the trial court to make the court believe the respondent could foresee that her act of switching off power could switch off the CCTV, leading to non-identification of the thieves. The respondent operated without any instructions manual and had switched off the sockets before without any reprimand or feedback by the employer. I agreed with the appellant that the failure of the police to prosecute the respondent did not bar disciplinary process as the same is an internal mechanism and a prerogative of the employer. The court finds the decision of trial court was founded on evidence before court and the principles for setting aside the decision on appeal were not met. see Mbogo V Shah [1968] EA Page 93 De Lestang V.P (As He Then Was) Observed At Page 94: “I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’ The court found no basis to interfere with the finding of unfair termination. Whether the trial court erred in remedies granted 1. On the remedies awarded- the appellant submitted as follows- i) Propriety of the damages awarded- The learned magistrate awarded the respondents one month's pay in lieu of notice, 12 months' salary as compensation for unfair termination and gratuity. The respondent was also awarded interest on the judgment sum together with the costs plus interests of the suit. ii) One month's pay in lieu of notice-The appellant was entitled to terminate the respondent's employment summarily and she is therefore not entitled to payment in lieu of notice. Without prejudice to the above assertion, the magistrate in awarding the claimant notice pay, failed to consider that the sum of Kshs. 50,939.00 was inclusive of reimbursement allowance of Kshs. 8,200.00 and telephone allowance of Kshs. 2,500.00 which are not part of notice pay. The Court in Godfrey Mwangi Wanjohi v Mitchelll Cotts Kenya Limited [2002] eKLR buttressed the position that allowances should not be included in computing terminal dues. Even if any notice pay was payable, the same would be Kshs. 40,230.00 comprising of the respondent's consolidated salary. In Peter Murithi Njoka & 4 others v Style Industries Limited [2022] eKLR) at paragraph 88, the court stated that, "certainty and fairness would therefore dictate this Court to employ the consistent figures, basic salary and house allowance." iii) Twelve (12) months' salary as compensation for unfair termination.- The appellant has demonstrated that there was no basis for an award of damages for unfair termination. In the event that this Court is inclined to uphold the learned magistrate's finding, that the termination was unlawful, the appellant submits that the award of 12 months' compensation was in the circumstances excessive. The trial court failed to take into account the considerations listed at section 49(4) of the Employment Act, specifically the circumstances under which the termination took place and the conduct of the employee that contributed to the termination. The learned magistrate failed to set out which provisions of section 49 (4) of the Employment Act he took into account at arriving at the said awards. The Court of Appeal in OlPejeta Ranching Limited vs. David Wanjau Muhoro [2017] eKLR in dealing with the maximum compensation held that: "Yes, the trial Judge may have been exercising discretion in making the award. However, such exercise should not be capricious or whimsical. It should be exercised on some sound judicial principles. We would have expected the Judge to exercise such discretion basedon the aforesaid parameters. In the absence of any reasons jattfying the maximun award, we are inclined to believe that the trial Judge in considering the award took into account irrelevant considerations and or failed to take into account relevant considerations, which act then invites our intervention." In Standard Group Limited v Jenny Luesby [2018] eKLR, the Court of Appeal outlined the purpose of awarding any form of compensation in a dispute on unfair termination and held that the factors set out under section 49 (4) must be taken into account. The court then took into account the considerations under section 49(4) and reduced the compensation awarded from 12 months to 2 months' salary. In the case Eedi (K) Limited v Dorris Angila Oyoya [2022] eKLR, when faced with an appeal challenging the award of 8 months' salary as compensation the Court revised the award holding that failure to consider the factors set out in section 49(4) of the Employment Act, 2007 resulted in an error of law and fact. If the court finds that the termination was unfair, the appellant urges it to consider the provisions of section 49 of the Employment Act, 2007 including considering the respondent's failure to discharge her duties and find that no compensation is payable. See Moses Agumba Orot v Chairman, Board of Directors, Lake Victoria South Water Services Board & another [2021] eKLR and Benson Muraguri Maina v Kassam & Bros Co. Ltd [2016] eKLR where the court refused to award the claimants compensation after finding that their dismissal was lawful and that the claimants had contributed to the circumstances that led to their dismissal. The court should specifically consider that the respondent's act of switching off the socket for the DVR machine located at the appellant's National Operations Centre is not in dispute and was admitted by the respondent during examination in chief, cross- examination and re-examination. The respondent's final dues were computed and paid to her. (page 135 to 136 of the record).Having contributed to the termination of her employment, the appellant invites this court to find that no compensation is payable or at most to award the respondent at most two month's pay as sufficient compensation. See Kenya Hotels and Allied Workers Union v Desert Rose Resort [2022] KEELRC 845 (KLR). iv) 12 years Gratuit- As pointed out in Bamburi Cement Limited vs Willian Kilonzo [2016] «KLR, gratuity, is a gratuitous payment for services rendered and is payable only if expressly provided for in the contract of employment or Collective Bargaining Agreement o statute. See also Pathfinder International Kenya Limited v Stephen Ndegwa Mwangi [2019] KECA 759 (KLR). The respondent has not proved that she was entitled to gratuity pay. The contract of employment dated 26th June 2009 does not contain the provision on gratuity pay. The appellant did not also lead any evidence to prove that she is a member of a Union and that such Union entered into a Collective Bargaining Agreement with the respondent for payment of gratuity to its members. The respondent appeared to rely on the Regulation of Wages (Protective Security Services) Order 1998, which provides for a service gratuity for certain workers in the security sector upon normal termination. However, that Wage Order applies only to specific job categories listed in its First Schedule. These are messengers, cleaners, watchmen/guards, dog handlers, copy typists, watchmen inspectors, general clerks, storekeepers, tailors and crew commanders. The respondent's role as a National Communication Centre Operator is not covered by that Schedule or indeed by the Wage Order. 1. Conversely, the respondent submitted that under Section 49 of the Employment Act, 2007, this Honourable Court is empowered to award notice pay, compensation for employment that has been unfairly terminated. Clause 5 of the Respondent’s contract of employment dated 26th June 2009 provides that, upon successful completion of the probationary period, termination of employment would require one (1) month’s written notice or payment in lieu thereof. No such notice was issued to the Respondent. The Respondent therefore submits that she is entitled to one month’s salary in lieu of notice. According to the Respondents payslip produced in her list of documents, her monthly salary was Ksh 50,939/=, which sum was properly claimed as payment in lieu of notice. The Respondent further prays for compensation for unfair dismissal. Under Section 49(1)(c) of the Employment Act, 2007, the Court may award compensation of up to twelve (12) months’ gross salary where termination is found to be unfair. Considering the Respondent’s long and unblemished service of over twelve (12) years, the absence of any proven misconduct, and the circumstances surrounding the dismissal, the Respondent having never secured alternative employment to date, the Respondent respectfully urges the Court to award the maximum compensation of twelve (12) months’ salary. This amounts to Ksh 50,939 × 12 = Ksh 611,268/=. The trial court properly exercised its discretion in making the award under this head, nothing has been presented to demonstrate that the amount awarded was excessive or fell outside the discretion of the learned trial Magistrate. It is trite law that an appellate court can only disturb the discretional award of the trial court where it proceeded on wrong principles, or misapprehended the evidence in some material respect, or where the finding was based on no evidence, this court has affirmed that position in the case of G4S Kenya Limited v Khawanga (ELRCA E046 of 2022) [2024] KEELRC 13202 (KLR). We thus submit that there is no reason advanced to justify the upsetting of the trial court’s findings. The Respondent places reliance on the Supreme Court case of Kenfreight (EA) Limited v Benson K. Nguti (ibid) where this position was affirmed with The Respondent worked for the Appellant for more than twelve (12) years. Regulation 17 of the Regulation of Wages (Protective Security Services) Order, 1998 (Legal Notice No. 24 of 1998) provides for gratuity payable to employees in the protective security services sector. Having served the Appellant for over a decade, the Respondent qualifies for gratuity under the said Regulation. To demonstrate that the Respondent falls within the category of employees entitled to compensation under the said Regulation, Clause 2 of the Regulation of Wages (Protective Security Services) Order, 1998 provides that: “This Order shall apply to all persons employed directly or indirectly by an undertaking or part of an undertaking which is involved in the carrying on of any of the following activities— a. private investigations or security consultancy; b. guarding of industrial plants, banks, warehouses, shops, private homes, or any other property or establishment against theft, illegal entry, or fire; and c. escort of money and/or other valuable property.” Pursuant to the letter of employment dated 26th June 2009, the Respondent was employed as a Cashier. At the time of termination of her employment, she was assigned as Communications Center Operator assigned duties in cash in transit control room (See paragraph 9 at page 109 of the record of appeal dated 7th December, 2022), thus, at the point of termination the Respondent was actively engaged in coordinating the escort of money for ATM replenishment. The Respondent was employed as a Cashier and later reassigned as Communication Center Operator, both roles adequately catered for in the Regulations and schedule 1 thereof, therefore it is the Respondent’s submission that she falls squarely within the scope of employees protected under the said Regulation and is consequently entitled to gratuity as provided therein. The Regulation provides a formula for computing gratuity for employees in the security services sector. Guided by the Regulation, the applicable computation is eighteen (18) days’ salary for each completed year of service. Applying this formula, the Respondent’s gratuity amounts to Ksh 366,756/=, which the Respondent prayed for pursuant to the said Regulation. To support award under the gratuity head pleaded above, the Respondent submits that this court has consistently affirmed that position in the G4S Kenya Limited v Khawanga case (ibid), this court also held the same position in George Onyango Akuti v G4S Security Services Kenya Ltd [2013] KEELRC 727 (KLR) and in Francis Maina Ndegwa v Security Guards Services Ltd [2004] eKLR. Decisions on the remedies 1. Gratuity – I have considered the various positions of the parties. There was no dispute that the respondent was employed by a security company as a cashier and was then assigned to a national communication centre operator at the appellant’s headquarters. The appellant stated the respondent’s job was not among those that attract gratuity. The respondent reproduced the relevant regulation as follows- Clause 2 of the Regulation of Wages (Protective Security Services) Order, 1998 provides that: “This Order shall apply to all persons employed directly or indirectly by an undertaking or part of an undertaking which is involved in the carrying on of any of the following activities— a. private investigations or security consultancy; b. guarding of industrial plants, banks, warehouses, shops, private homes, or any other property or establishment against theft, illegal entry, or fire; and c. escort of money and/or other valuable property.” The respondent was a cashier within cash services(page 24 was the employment contract) . I find it difficult to connect her with the role of escort of money. Indeed, the job title in the job profiile was National Communication Centre Operator, and the purpose of the job was not related to cash escort (page 28 of ROA). The court noted that the respondent was also under the staff retirement benefits scheme. The award of gratuity in the opinion of the court was erroneous and is set aside. 2. On the compensation for unfair termination - the trial court did not justify the awards. The trial court was under obligation to justify the maximum award by applying the factors under section 49(4) of the Employment Act to wit- ‘A labour officer shall, in deciding whether to recommend the remedies specified in subsections [(1)](https://new.kenyalaw.org/akn/ke/act/2007/11/eng%402024-04-26#part_VI__sec_49__subsec_1) and [(3)](https://new.kenyalaw.org/akn/ke/act/2007/11/eng%402024-04-26#part_VI__sec_49__subsec_3), take into account any or all of the following—(a)the wishes of the employee;(b)the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and(c)the practicability of recommending reinstatement or re-engagement;(d)the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances;(e)the employee's length of service with the employer;(f)the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;(g)the opportunities available to the employee for securing comparable or suitable employment with another employer;(h)the value of any severance payable by law;(i)the right to press claims or any unpaid wages, expenses or other claims owing to the employee;(j)any expenses reasonable incurred by the employee as a consequence of the termination;(k)any conduct of the employee which to any extent caused or contributed to the termination;(l)any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and(m)any compensation, including ex-gratia payment, in respect of termination of employment paid by the employer and received by the employee.’The Court of Appeal in OlPejeta Ranching Limited vs. David Wanjau Muhoro [2017] eKLR in dealing with the maximum compensation held that: "Yes, the trial Judge may have been exercising discretion in making the award. However, such exercise should not be capricious or whimsical. It should be exercised on some sound judicial principles. We would have expected the Judge to exercise such discretion based on the aforesaid parameters. In the absence of any reasons justifying the maximum award, we are inclined to believe that the trial Judge in considering the award took into account irrelevant considerations and or failed to take into account relevant considerations, which act then invites our intervention." 3. The Court proceeds to consider the factors in section 49(4) of the Act above. The respondent was employed on 26th June 2009 and exited service on 28th October 2019. That was a substantial 10-year period of service. The court finds that the respondent’s act of switching off the power , though held not negligent, contributed to the termination. The employer paid for the days worked and complied with the law on the issuance of a certificate of service. The court, having applied the factors in section 49(4) of the Employment Act, finds the maximum award was not justified and reduced the same to an award of 10 months' gross salary. On the applicable gross salary the respondent pleaded Kshs. 50,939/-. I perused the record and did not find a payslip despite the same being reflected in the respondent’s list of documents. The appellant submitted that the trial court in awarding the claimant notice pay, failed to consider that the sum of Kshs. 50,939.00 was inclusive of reimbursement allowance of Kshs. 8,200.00 and telephone allowance of Kshs. 2,500.00 which are not part of notice pay. The appellant submitted that the Court in Godfrey Mwangi Wanjohi v Mitchelll Cotts Kenya Limited [2002] eKLR buttressed the position that allowances should not be included in computing terminal dues. That even if any notice pay was payable, the same would be Kshs. 40,230.00 comprising of the respondent's consolidated salary. In Peter Murithi Njoka & 4 others v Style Industries Limited [2022] eKLR) at paragraph 88, the court stated that, "certainty and fairness would therefore dictate this Court to employ the consistent figures, basic salary and house allowance." 4. The appellant produced the final dues tabulation which indicated basic pay as Kshs. 40230. There is no claim for housing, thus the court took the figure of Kshs. 40,230 as the consolidated pay without other allowances as held in Godfrey Mwangi Wanjohi v Mitchelll Cotts Kenya Limited [2002] eKLR . Those allowances of reimbursement allowance of Kshs. 8,200.00 and telephone allowance of Kshs. 2,500.00 were excluded as they were for the convenience of the employee to do the work. On termination, they ceased. The court awards Compensation for unfair termination equivalent of 10 months gross wages(Basic pay and housing ) @40230 thus Kshs 402,300.The notice pay is upheld and awarded for Kshs. 40,230. 39. In conclusion, the appeal is allowed, the gratuity pay is held as unjustified and set aside. The applicable gross salary is held as KShs. 40230 and the payable compensation is reduced to the equivalent of 10 months. Consequently, the Judgment and Decree of the Hon. S.A. Opande (PM) delivered at Nairobi on the 14th day of November, 2022, in CMEL No. E853 of 2020 is set aside and substituted as follows- Judgment is entered for the claimant against the respondent as follows- 1. Notice pay in lieu Kshs. 40,230. 2. Compensation for unfair termination Kshs. 402,300. 3. Costs of the suit and interest at court rate from date of judgment. 4. The appellant succeeded partially in the appeal and is awarded ½ costs in the appeal. 5. It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026. JEMIMAH KELI JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – Mwendwa Respondent- Maliambo h/b Makaka days stay granted.