https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2245

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E247 OF 2023** *(Before D. K. N. Marete)* **MICHAEL BOSIRE NYAMARI……………………………..……………APPELLANT** -VERSUS- **G4S SECURITY LIMITED………………………………….……………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal. It is an appeal from the whole Judgment delivered on 31st October, 2023 at the Chief Magistrate’s Court, Milimani Commercial Courts, in MCELRC No. E265 of 2021. The Memorandum of Appeal sets out the following grounds: 1. *The learned magistrate erred in law by failing to analyse the evidence conclusively as pertaining the circumstances and the evidence on record.* 2. *The learned magistrate failed to appreciate the circumstances leading to the termination.* 3. *The trial court failed to consider the claimant's authorities and submissions touching on the issue of unfair termination thereby arriving at a wrong conclusion in law.* 4. *The trial court failed to consider the issue of special damages and gratuity thereby dismissing the claimant claim in its entirety.* 5. *The learned magistrate erred in law by failing to properly apply the law to the facts thereby resulting in the dismissal of the suit.* The appellant seeks the following orders of this court; 1. *A declaration that the termination of the claimant's employment by the respondent was unlawful, malicious, unprocedural and an infringement on his constitutional rights.* 2. *Maximum compensation for wrongful dismissal;* 3. *special damages* *i. One Month's pay in lieu of Notice…………………………………….Ksh 17,453.00* *ii. Damages for wrongful dismissal………………………….………..Ksh 209,424.00* *(17,453 x12)* *iii. Service Gratuity……………………………………………………Ksh 120,828.00* *(Ksh 17,453/26x 18x 10)* 1. *Interest on the total.* 2. *Costs of the Cause.* 3. *Any other and further relief this Honourable Court may deem fit and just to award under the circumstances.* The Appellant’s case, as pleaded in the Memorandum of Claim dated 11th August 2021 and elaborated in his testimony and written submissions, is that he was employed by the Respondent as a security guard from 2015. On 14th October, 2020 while on duty, his Area Supervisor, Mr. Benedict Mbithi, found him without his cap and without his baton. The Appellant was thereafter suspended by a letter dated 19th October, 2020 and issued with a notice of disciplinary hearing. He attended the hearing on 27th October, 2020 was cross-examined by a panel of three officers and was subsequently dismissed. It was the Appellant’s case, both at trial and on appeal, that his dismissal was both substantively and procedurally unfair. This is because the charges against him were minor, unproven or based on a fabricated additional charge and procedurally because the panel’s findings and the summary dismissal letter raised charges not originally put to him. The Respondent’s case as set out in its Statement of Response and the witness statement of Ms. Ann Mwangi is that the Appellant was afforded due process: he was issued with a suspension letter and a notice of disciplinary hearing. The charges were read out to him and he was given an opportunity to respond. A panel of three officers heard the matter and found that the Appellant had not only been in breach of the uniform requirement but had also been absent from his post without authorisation on 14th October, 2020. The Respondent maintains that summary dismissal was warranted on those facts under Section 44(3) of the Employment Act, 2007. The issues for determination are: 1. Whether the termination of the Appellant’s employment was wrongful, unfair and unlawful. 2. Whether the termination was procedurally fair. 3. Whether the Appellant is entitled to the reliefs sought. 4. Who bears the costs of this cause. In the authority **Peters v Sunday Post Limited [1958] EA 424** and **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the duty of a first appellate court was set out thus: the appellate court is under an obligation to reconsider and re-evaluate the evidence on record, draw its own independent conclusions on issues of fact and law, and arrive at its own decision, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify and should therefore not interfere with credibility findings unless they are plainly wrong. The 1st issue for determination is whether the termination of the Appellant’s employment was wrongful, unfair and unlawful. Section 43 of the Employment Act, 2007 places the burden on an employer to prove the reason for termination. The trial court found that the Respondent had discharged that burden by establishing two factual strands: first, that the Appellant tore up the dispatch note issued to him and secondly, that he had been absent from his post without authorisation on 14th October, 2020 in breach of his duty as a deployed security officer. As to the first strand, this court has examined the record and notes that the evidence on whether the Appellant tore up the dispatch note is contested and not conclusively proved. The benefit of the doubt on this strand issue would lie with the Appellant. The second strand, however, is not in dispute. The Appellant himself confirmed, both in his written statement of 19th October, 2020 and in his testimony before the trial court, that on 14th October, 2020 he was found away from his post, in breach of his guard duty. His explanation was that he had stepped away briefly, but the fact of the absence is admitted. It is well settled that where a termination rests on more than one reason, it is sufficient for the employer to establish that at least one of those reasons is valid and fair, and that reason alone would have justified the termination. In the authority of **Postal Corporation of Kenya v Andrew Njoroge [2013] eKLR** the Court of Appeal held that the standard of proof is whether the employer had a valid and fair reason that a reasonable employer, acting within the range of reasonable responses, would have regarded as sufficient. An admitted departure from post by a deployed security guard is, on any reasonable application of that standard, a valid and fair reason for summary dismissal under Section 44(3) of the Employment Act, 2007. This answers the 1st issue for determination. The 2nd issue for determination is whether the termination was procedurally fair. Section 41 of the Employment Act, 2007 requires that, before terminating an employee on grounds of misconduct, the employer must explain to the employee in a language the employee understands the reason why termination is being considered, allow a representative of the employee to be present, and hear and consider any representations by the employee or representative. The Appellant’s principal procedural complaint is that the panel’s findings, and by extension the Respondent’s case at trial, raised a charge of absence from post that was not originally put to him in the suspension letter or the notice of disciplinary hearing. This court has examined the record and notes that the suspension letter of 19th October, 2020 and the notice of hearing specifically referenced the Appellant’s departure from his post as part of the circumstances which the panel was to consider. The Appellant attended the hearing, was represented and offered his account of events. Even if the panel’s articulation of the findings added a degree of particularity beyond the original suspension letter, the substance of the complaint, namely his departure from his post on 14th October, 2020 was before him from the outset and he had the opportunity to address it. The Court of Appeal’s guidance in **G4S Security Services (K) Limited v Eluid Ambitho Audi [2016] eKLR** confirms that an employee who attends a disciplinary hearing and participates fully in the process cannot subsequently impugn the fairness of that process on the basis of a technical gap between the suspension letter and the panel’s findings, where the substance of the complaint was known to and addressed by the employee. The 2nd issue is answered in the Respondent’s favour. The 3rd issue for determination is whether the Appellant is entitled to the reliefs sought. Having found the termination both substantively and procedurally fair, it follows that the Appellant is not entitled to any of the reliefs sought. None of the five grounds of appeal succeeds. The trial court properly found that the Respondent had established valid and fair grounds for the summary dismissal and that due process had been followed. I am therefore inclined to dismiss the appeal with orders that each party bears their costs of the same. Delivered, dated and signed this **31st** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Mr. Wetaba instructed by Wetaba, Were & Associate Advocates for the Appellant. 2. Adani holding brief for Makori instructed by Hamilton Harrison & Mathews Advocates for the Respondent.