https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1773

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E259 OF 2025** **LONGHUS ARASA NYANYUKI APPELLANT** *VERSUS* **KENYA KAZI SECURITY LIMITED RESPONDENT** **[Being an appeal from the judgment of Hon. Tom Mark Olando delivered on 9 July 2025 in Nairobi CMELRC No. E1035 of 2020]** **JUDGMENT** The appeal arises from the judgment delivered on 9 July 2025 in Nairobi CMELRC No. E1035 of 2020. There are two (2) grounds of appeal: 1. *The learned magistrate erred in law and fact by dismissing the appellant’s case ad finding that the appellant admitted under cross examination that he allowed items to pass the gate without a gate pass which was contrary to company policy, despite the fact that it was proved through evidence that the goods did not being to and or enter the clients premises (AMREF) and that a gate pass was not a requirement for the items to pass through ad that there was no proof of any company policy on the same thus shifted the burden of proof from the employer to the employee contrary to the evidence* *presented before the court and the law.* 1. *The learned magistrate erred in fact by not awarding the appellant herein all the remedies sought/prayed for as against the evidence and facts presented before the court.* The appellant is seeking that the judgment of the trial court be set aside and that the claims be awarded with costs. The background to the appeal is a claim filed by the appellant before the trial court. His case was that on 31 May 2014, he was employed by the respondent as a day guard at a wage of Ksh. 17,000 per month. Working hours were from 6 am to 6 pm from Monday to Saturday, with Sunday off. On 11 January 2020, at 9 am, his friend, an internet connector called Daniel Odhiambo, came with cables in a box and left them at the gate the appellant was guarding. Odhiambo asked for a boda rider to transport the cables to Isinya, Kajiado County. He gave him Ksh 2,000 for transport, which he used to pay the rider, his reliever, Evans Ombasa, and another guard, Josiah Ruto. On 18 January 2020, Evas Ombasa told AMREF's security manager that the appellant had stolen cables and sold them to Daniel Odhiambo. The claim explained the events and that these cables belonged to his friend, and resolved the matter. On 21 January 2020, the applicant went to the offices and was asked to write his statement of the incident. On 4 February 2020, the appellant, together with his colleagues Ruto and Ombasa, was summoned to the head office. The human resource manager issued a notice of summary dismissal on the grounds that he had allowed a contractor to leave the client premises with stolen items without a gate pass, which was contrary to company operational requirements and policy, and he was paid Ksh. 1,500 to conceal the information. The appellant claimed that there was unfair and unwarranted termination of employment and thus claimed the following: 1. Notice pay Ksh. 22,000. 2. 21-day sleeve Ksh. 15,400. 3. Service for 18 days and 6 years Ksh. 76,153.84. 4. 12 months' compensation Ksh. 264,000. In reply, the respondent admitted the employment relationship and that a box of cables was left with the appellant at his workstation by a contractor, Daniel Odhiambo. The appellant procured the services of a rider to move these cables. He received money, which he shared with colleagues, Ombasa and Ruto. Ombasa reported the incident to the security manager, who inquired whether there was a gate pass when the cables were missing. It was found that these cables belonged to the client, AMREF. On 11 January 2020, the appellant wrote his statement on the incident without coercion, and a disciplinary charge was held on 4 February 2020. He was given a hearing before the disciplinary committee. A decision was made to proceed with summary dismissal for gross misconduct. There was thus a sufficient cause and justification for the summary dismissal. The claim for notice pay and compensation is not due. The leave allowances had been paid, and being a member of the NSSF, service pay is not due. The learned magistrate heard the parties and held that there were valid reasons for the termination of employment, since the appellant admitted that he allowed items belonging to Odhiambo to pass through the gate he was manning without a gate pass. This was contrary to the company's policy. The appellant was therefore not entitled to notice pay, and the claim for payment of leave allowance once at Ksh. 15,400 was not challenged with evidence, hence due. The claim for service pay was dismissed. The appellant was also awarded costs. On the appeal, the appellant submitted that in **George Musamali v G4S Security Kenya Ltd [2016] eKLR,** the court held that termination of employment takes two stages; there must be a valid and justifiable reason for termination. Once this is established, the termination must be carried out in accordance with the procedure set out in the employer’s human resources policy or the Employment Act (the Act). The Appellant submitted that the charge against the Appellant before the trial court of allowing items to pass through the gate without the requisite pass was not proved, as the said policy document itself, which was said by the Respondent to be the standard operating procedure, was not exhibited in court during the trial. The issue, according to the appellant, is whether there was a requirement to issue or confirm a gate pass before the goods passed him, the appellant having proved that the cable belonged to a third party, and the court having indicated in the judgment that the goods belonged to a third party. Further, there was no proof of any gate pass ordinarily issued by AMREF to its clients, and nothing prevented the respondent from obtaining a sample of the gate pass ordinarily issued by AMREF to confirm that the goods indeed required a particular gate pass. The appellant submitted that the termination was unfair for want of substantive justification or reason and want of substantive process. in **Ken freight (EA) Limited vs Benson K Nguti [2016] e KLR** the court held that the employer apart from issuing a proper notice according to the contract of employment is duty bound to explain to the employee in the presence of another employee or union official, in a language the employee understands, the reason or reasons for which the employee is considering termination of the contract. The appellant submits that this requirement was not met. The appellant submitted that his employment was terminated without being given any notice, contrary to section 35 (1) (c) and 36 of the Act. The respondent neither issued any written notice before terminating the appellant nor paid any salary in lieu of notice. The appellant submits that he should be awarded salary in lieu of notice, as required by clause 7(b) of the employment contract, in addition to the 12 months’ salary compensation for unfair termination. The appellant acknowledged and admitted to the charge of allowing items to leave the premises without a gate pass on several occasions. In his statement dated 18 January 2020, he admitted that on 11 January 2020, Duncan Odhiambo came to pick up his wire without a gate pass. In Haojue **Holdings (Kenya) Ltd v Dipa General Stores Ltd [2024] KEHC 1615 (KLR),** the view is that admissions made by either party in its pleadings or orally can sustain a judgment on account of such an admission. The respondent submitted that the appellant was issued a notice to show cause, which explained the allegations against him, together with the particulars, in a language he understood. He was allowed to respond to the notice and was heard, with the outcome being communicated in a summary dismissal letter dated 4 February 2020. In **Malului v Red Court Hotel Limited t/a The Boma Hotel [2025] eKLR**, the court held that, having a justified reason for termination of employment, the summary dismissal was lawful and did not entitle the appellant to notice pay or pay in lieu thereof. And the appellant, being a member of NSSF at the time he was with the respondent, is not entitled to service pay. In **Wanjiku v Vanela House of Coffees [2018] KEELRC 663 (KLR),** the court held that an employee who is a member of NSSF under section 35(6) is not entitled to service pay. **Determination** This being a first appeal, the court may review the record, reassess the finding, and reach a conclusion. However, consider that the trial court had the chance to hear the witnesses give evidence. Hence, give this context. Through a notice dated 4 February 2020, the respondent terminated the applicant’s employment through summary dismissal. The reasons were that on 11 January 2020, while the appellant was assigned duties as a security officer at AMREF Kenya, Wilson Airport, along Langata Road, he allowed a contractor to leave the client’s premises with stolen items without a gate pass. This was against the post operating procedures. The grounds for the summary dismissal were that the appellant received Ksh. 1,500 as part of his share to conceal the information. He failed to report to his immediate supervisor at the office. It was also asserted that, upon investigation, this was found to be a practice that had been ongoing, and that the appellant had not reported to the office. There was a notice and a disciplinary hearing. The appellant was found to have engaged in gross misconduct. In the Memorandum of Claim at paragraphs (5) and (6), the appellant admitted to the incident and further agreed that he was paid Ksh. 2,000 for the transportation of goods left by Odhiambo at the gate. He indeed called a rider and shared out the money with Ombasa and Ruto. On 18 January 2020, the appellant wrote his statement, explained the incident, and admitted that Odhiambo left the cable with him at the workstation, at the gate he was manning, and money to transport the cables, which he shared with his colleagues. Ombasa's statement about the incident corroborates this evidence. Ombasa noted that this was not the first incident of this nature. In 2019, he reported that the appellant had picked the tissues, and the supervisor, Rono, was made aware but did not take action. In September 2018, the chief pilot left some goods at the gate for collection by a third party. The appellant does not contest these reports. His case and appeal are that the respondent had no workplace policy to regulate such matters. However, in his evidence before the trial court, the appellant admitted the incident and that Odhiambo paid him to transport the cables left at the gate. Under section 44(3) and (4) of the Employment Act (the Act), the employer is allowed to terminate employment by summary dismissal for breach of the employment contract. The safeguard for the employee is notice; short notice is allowed, and a hearing on the shop floor is available. The appellant was a security guard manning the gate at AMREF. His duties entailed guarding the premises, and checking what entered or left them was a core requirement of the job. The assertion that there was no workplace policy in this regard and that the use of a gate pass was not preset or regulated is an abdication of duty. Taking such a standpoint is a negation of the core duty and responsibility. Despite being employed as a security guard by the respondent and deployed at AMREF, the appellant took extra work from Odhiambo to transport goods with him at the respondent's workstation. He was paid for such extra duties. Such is a breach of the role and duty assigned by the respondent. Receiving payment from Odhiambo to run errands for him is a fundamental breach of a security guard's duties. The trial magistrate thoroughly analysed the facts, applied the law, and reached a correct finding. Under section 43 of the Act, the respondent had genuine and valid reasons leading to the sanction of summary dismissal. Notice pay and compensation are not available. The claim for annual allowance was well addressed and awarded Ksh. 15,400. On the claim for service pay, indeed, as a security guard, the Wage Orders allow payment for years worked. However, for summary dismissal as the reason for exiting the shop floor, such payment is not available. As to the awarded costs, being a discretionary remedy under section 12(4) of the Employment and Labour Relations Court Act, no reasons are given for the same. The appeal thus addressed and found without merit, each party should pay its costs. **Accordingly, the appeal is without merit and is hereby dismissed. Each party is to meet its costs for the trial court and this appeal.** **Delivered in open court this 29th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Samuel Maruga** **………………………………….… and ……………………………………..**