[2025] KEELRC 855 (KLR)

Onyango v Riley Falcon Security Services (Cause E058 of 2024) [2025] KEELRC 855 (KLR) (18 March 2025) (Judgment)

Neutral citation: [2025] KEELRC 855 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Cause E058 of 2024

JK Gakeri, J

March 18, 2025

Between

Sylvester Owino Onyango

Claimant

and

Riley Falcon Security Services

Respondent

Judgment

1. It is common ground that the respondent employed the claimant in 2002 as a security guard and he remained in employment until 13th December, 2023 when his employment was terminated by the respondent for reporting to the place of work late, by which time his salary had risen to Kshs.17,142. 00 per month.

2. The claimant testified that he served diligently and was neither reprimanded nor issued with a warning letter. He alleged that he did not proceed on leave at any time during his employment.

3. The claimant acknowledge having received a notice to show cause, responded, admitting the mistake and requested for another chance, was invited for a disciplinary hearing but was not heard and employment terminated vide letter dated 13th December, 2023. The claimant prays for:i.A declaration that termination of his employment by the respondent was unlawful and in violation of his constitutional rights.ii.Compensation for wrongful termination Kshs.205,704. 00. iii.Unpaid off days Kshs.328,896. 00iv.Public holidays Kshs.47,964. 00v.House Allowance Kshs.740,448. 00vi.Gratuity for years worked Kshs.102,852. 00vii.General damages for mistreatment and disturbance.viii.Any other just and expeditious relief.ix.Costs and interest.

Respondent’s case 4. The respondent admitted that it employed the claimant in 2002 as a security guard on fixed term contracts at the end of which the claimant would be vetted and apply for employment and the last contract was effective November, 2023 to lapse in November, 2024.

5. The respondent stated that employees took 26 annual leave days after every contract and it remitted NSSF and NHIF deductions regularly and also paid house and leave allowance and holiday pay.

6. The respondent testified that on the date of hearing on 7th December, 2023, the claimant pleaded guilty after the charge was read out to him in a language understood.

7. On 5th December, when the matter came up for hearing, the respondent’s counsel was not ready and sought an adjournment, he then proposed to proceed by way of documents under Rule 59 and counsel for the claimant agreed and directions on the filing of submission were given.

8. The claimant provided copies of his national identify card, employment card, demand letter dated 29th February, 2024 for Kshs.1,477,290. 00, payslip for November, 2023, faint copy of the NSSF statement for the period 2002 to 2023 notice to show cause dated 4th December, 2023, invitation for a disciplinary hearing dated 4th December, 2023 slated for 7th December, 2023 and a copy of the termination of contract letter dated 13th November, 2023.

9. On its part, the respondent filed a bundle of documents, including contracts of employment executed by the claimant, final dues form for September, 2008, copies of pay slips for July 2010, others for 2019, 2020, 2021, 2022 and 2023.

10. The payslips reveal that the respondent paid house allowance regularly, public holidays, leave, overtime as due as well battery, soap allowance per month and NSSF deductions were made.

11. Equally, the respondent availed copies of the claimant’s application for employment letter dated 3rd October, 2023 which ushered in the last contract concluded on 2nd November, 2023.

12. It also provided a copy of the claimant’s response to the notice to show cause dated 4th December, 2023, acknowledging his mistake as well as attendance and minutes of the disciplinary hearing signed by Mr. George Otieno only.

13. On termination of the claimant’s employment, counsel submitted that the claimant’s written apology showed remorsefulness and was his first and only 22 minutes late and pleaded guilty and had not been involved in wrongdoing or misconduct previously.

14. Counsel further submitted that the termination of the claimant’s employment was harsh and oppressive.

15. On the reliefs sought, counsel submitted that although dues were deducted from the claimant’s salary, they were not regularly remitted to the NSSF, NHIF or the KRA. However, did not quantify the total amount deducted but not remitted in each case, as the claimant had not done so.

16. Reliance was made on the sentiments of the court in Nicodemus Ochieng Ogutu V Village of Hope Kenya [2018] eKLR cited in Abednego Ndolo Mulinge V Kenya Institute of Management [2022] eKLR where the court ordered a refund of statutory deductions not remitted.

17. On interest, counsel relied on the decision in Shariff Salim & Another v Malundu Kikava [1989] eKLR which cited Prem Lata V Peter Musa Mbiyo [1965] EA 592.

18. Counsel urged that the Claimant was entitled to all the reliefs sought.

Respondent’s submissions 19. Concerning termination of the claimant’s employment, counsel for the respondent submitted that the reason for the dismissal was lateness and rudeness of the claimant, having arrived 22 minutes late and admitted the same, which according to counsel amounted to gross misconduct under Section 44(4) of the Employment Act owing to the sensitivity of the work of a security guard and he was additionally rude.

20. On procedure, counsel submitted that prescribed procedure was complied with and the claimant was paid in lieu of notice.

21. On public holidays, reliance was made on Kudheiha Workers V Charles Waithaka Goko t/a Apple Becs Pub and Restaurant [2013] eKLR.

22. As regards compensation, counsel submitted that it was unmerited as there was no wrongful or unfair termination of employment.

23. Counsel submitted that the unpaid offs were ambiguous, public holidays lacked accuracy and credibility, house allowance was paid as per the payslips and the computation of gratuity was unclear and no basis of general damages had been laid.

Analysis and determination 24. It is not in dispute that the claimant was an employee of the respondent from 2002 to December 2023, and served diligently as he had no recorded instance of misconduct or wrongdoing and his employment was terminated for reporting to the work place late by 22 minutes and when asked about it he responded arrogantly, allegations he did not deny.

25. In fact, in his response to the notice to show cause the claimant admitted wrongdoing and promised not to repeat the mistake again.

26. The provisions of the Employment Act are unambiguous that for a termination of employment to pass muster there must have been a valid and fair reason to terminate the employee’s employment and the process was conducted in consonance with a fair procedure as aptly captured by Ndolo J. in Walter Ogal Anuro V Teachers Service Commission [2013] eKLR as follows:“…However, for a termination to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness…”See Naima Khamis V Oxford University Press (EA) Ltd [2017] eKLR.

Reason(s) for termination 27. Granted that there is no dispute as to reason for termination of the claimant’s employment, notwithstanding the fact that letter of termination of employment was reticent on the reason for termination, it behooves the court to determine whether the reason(s) relied upon by the respondent was valid and fair as ordained by the provisions of Section 45(2)(a) and (b) of the Employment Act.

28. The conduct complained of by Mr. Kennedy Ong’ong’a dated 30th November, 2023 is that on 24th November, 2023, the claimant reported at Kisumu Concrete Products, his work station at 1752 hours as opposed to 1730 hours, and thus was 22 minutes late but what appeared to have infuriated the supervisor was the claimant’s arrogance in responding to the inquiry about the lateness.

29. Significantly, Mr. Kennedy Ong’ong’a did not testify either at the disciplinary hearing or in court and accused the claimant of arrogance as opposed to rudeness as submitted by the respondent’s counsel. The two English words do not refer the same thing or meaning.

30. The concise Oxford English Dictionary, [2011], 12th Edition defines arrogance as:“Having an exaggerated sense of one’s own important or abilities”Equally rudeness is defined as:“Offensively, impolite or bad mannered”.

31. While the term arrogant denotes hubris, feeling of self-importance, haughtiness, egotism or being pompous or conceited, rudeness on the other hand is associated with being ill-mannered, discourteous, insolent disrespectful, offensive or contumelious.

32. The disciplinary committee’s only finding was that the claimant was unremorseful.

33. Needless to emphasize, in his written response to the notice to show cause, which the committee does not appear to have considered, the claimant regretted his behaviour and promised not to do it again.

34. From the minutes on record, it is undiscernible as to what the disciplinary committee took into consideration in arriving at the decision to issue a termination letter. This was essential because the claimant had been an employee of the respondent for over 20 years and had no recorded case of misconduct which would appear to suggest that he was a diligent employee.

35. Secondly, the claimant was not absent from the workplace, he was only late by 22 minutes.

36. Thirdly, and as adverted to elsewhere in this judgment, the accusations against claimant did not amount to negligence as alleged in the notice to show cause.

37. In Moses Stanley Okoth V Hypermarket Ltd [2021] eKLR where an employee had absented himself from the work place for 3 hours, this court held that the absence did not warrant the sanction of summary dismissal.

38. In Rodgers Titus Wasike V General East Africa Ltd [2020] eKLR and Thomas Azombo Kirunga V Krystalline Salt Ltd where employees were absent for 8 and 9 days respectively, without authority, the court held that court found the dismissal justified.

39. From the foregoing and in the court’s view, a 22 minutes absence from the workplace is not a valid and fair reason to terminate an employee’s employment, nor would being arrogant unless the conduct is habitual or amounts to rudeness.

40. Section 45 of the Employment Act requires the employer to prove that it had a valid and fair reason. The use of the word “and” means the requirements are conjunctive and must be satisfied separately.Section 43(2) of the Employment Act provides thatThe reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist, and which caused the employer to terminate the services of the employee.

41. In Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR B. O. Manani held as follows:“…In other words, it is not a requirement of the law that the substantive ground informing the decision to terminate must in fact be in existence. All that is required is for the employer to have a reasonable basis for genuinely believing that the ground exists…”

42. Although the test under Section 43(2) of the Employment Act is partly subjective as held by the court of Appeal in Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 Others [2019] eKLR, the applicable test is that of a reasonable employer set out in Halbury’s Laws of England, 4th Edition Vol. 16 (1B) Paragraph 642, the band of reasonable responses test adopted by Lord Denning in British Layland (UK) Ltd V Swift [1981] I.R.L.R 91.

43. Considering the allegations made against the claimant, his response to the notice to show cause and the absence of the basis on which the disciplinary committee decided to terminate the claimant’s employment, coupled with the absence of the precise reason for termination of employment as per the appointment letter, the court is not persuaded that a reasonable employer would have terminated the claimant’s employment in similar circumstances. The claimant was arrogant but not rude.

44. In sum, it is the finding of the court that the respondent has failed to demonstrate on a balance of probabilities that it had a valid and fair reason to terminate the claimant’s employment.

Procedure 45. It requires no belabouring that the procedural precepts prescribed by the provisions of Section 41 of the Employment Act are mandatory.In Jane Samba Mukala V Oltukai Lodge [2013] eKLR Mbaru J stated:“Where the procedure as set out under Section 41 of the Employment Act is not followed, then a termination that arises from it will be procedurally flawed. It is procedurally irregular…”

46. See also Pius Machafu Isindu V Lavington Security Guards Ltd [2017] eKLR.

47. In the instant case, while the respondent submits that the requisite procedural requirements were complied with, the claimant argued and testified that neither he nor his representative was given audience at the meeting.

48. Puzzlingly, the claimant’s written statement is silent on what transpired at the meeting.

49. Documentary evidence on record reveals that the claimant received a notice to show cause on 4th December, 2023, and responded on the same day and by letter dated 4th December, 2023, he was invited for a disciplinary hearing scheduled for 7th December, 2023 at 10:00am.

50. The invitation notice identified the members of the disciplinary committee and informed the claimant of his right to be accompanied by a fellow employee.

51. The uncontested minutes of the hearing filed by the respondent show that only three members of the disciplinary committee attended and the claimant was also present and attended alone, but a shop steward by the name A. Nyagaka was present. The meeting took place in the Human Resource Officer’s office at 4:30pm and charges were read out to the claimant and he was allowed to respond and the committee found his explanation insufficient in light of the charges.The minutes are silent on whether the shop steward spoke.

52. The committee came to the conclusion that the claimant’s discipline was wanting.

53. Notably, the respondent did not avail the claimant’s supervisor to testify at the hearing and be questioned by the claimant and the minutes state that the claimant did not wish to appeal, a fact the claimant did not contest.

54. In sum, the court is persuaded that the respondent has demonstrated that it complied with the provisions of Section 41 of the Employment Act on procedure.

55. Having found that the respondent has failed to prove that it had a valid and fair reason to terminate the claimant’s employment as the termination of the claimant’s employment was thus substantively unjustifiable, I will now proceed to determine the appropriate relief(s).

a. Declaration 56. Having found that the respondent had not demonstrated that it had a substantive justification to terminate the claimant’s employment, the declaration sought is merited.

b. Unpaid off days 57. This prayer lacks essential details. The claimant provided no evidence of how his work week was organized or demonstrate that he did not have any off days as ordained by law.

58. The court is being called upon to assume and believe that for 12 years the claimant did not have any off day, which in the courts view is not believable.The claim is declined.

c. Public holidays 59. This claim lacks particulars and is for dismissal.

60. Copies of payslips on record reveal that the respondent paid for public holidays at Kshs.583. 47 per day as opposed to the Kshs.571 claimed by the claimant.

61. For instance in January 2021, the claimant was paid Kshs.1,166. 94 for 2 public holidays.The claim is dismissed.

d. House Allowance 62. The provisions of Section 31 of the Employment Act are clear that an employer must, at his own expense, provide reasonable accommodation for employees at or near the place of work or pay a sufficient sum as rent to enable the employee obtain reasonable accommodation.

63. The claimant is claiming the sum of Kshs.740,448. 00 as house allowance for 12 years. However, the claimant has not identified the respective years when house allowance was not paid between 2002 and 2023. The absence of particulars renders the claim unproven.

64. More significantly, whereas copies of the claimant’s payslip for July, 2010 have no entry for house allowance and the gross salary was Kshs.7,812. 70, the contract dated 3rd April, 2018 contains a provision, for house allowance and the claimant’s payslips from January 2019 to November 2023 show that house allowance was paid at 15% of the basic salary. See Grain Pro Kenya Inc. Ltd V Andrew Waithaka Gitahi [2019] KECA 563.

65. If house allowance was not paid before April, 2018, the claim is statute barred by dint of Section 89 of the Employment Act.The claim for house allowance is dismissed. e.The term gratuity is coined from the term gratis or graytis which literally means free.Anything done gratuitously is done or given without an obligation to do so.In an employment relationship, it is given as an appreciation of the employee’s services and is typically provided for in the employment contract or Collective Bargaining Agreement (CBA).None of the claimants employment contracts contained a provision for payment of gratuity by the respondent.The sum of Kshs.102,852 claimed by the claimant lacks a legal basis and the prayer is dismissed.

f. General damages 66. The claimant provided no scintilla of evidence of the mistreatment or disturbance. The claimant’s statement dated 1st July, 2024 has no particulars of the alleged mistreatment or disturbance, including when it took place and where.The prayer is dismissed.

g. Compensation for wrongful dismissal 67. Having found that termination of the claimant’s employment by the respondent was unfair for want of a substantive justification, the claimant is entitled to compensation for the loss of employment in consonance with the provisions of Section 49(1)(c) of the Employment Act.

68. Considering that the claimant was an employee of the respondent for about 22 years and had no previous disciplinary record and further taking into account the fact the claimant refused to appeal the termination of his employment and substantially contributed to the termination of employment, the equivalent of 6 months gross salary is fair (Kshs.17,513. 23 x 6) =Kshs.105,079. 38

69. In the upshot, judgment is entered in favour of the claimant against the respondent in the following terms.a.A declaration that termination of the claimant’s employment by the respondent was unfair.b.Equivalent of six (6) months gross salary, Kshs.105,079. 38. c.Costs of this suit.d.Interest on (b) above from date of judgment till payment in full.

Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU ON THIS 18TH DAY OF MARCH, 2025. DR. JACOB GAKERIJUDGEORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.DR. JACOB GAKERIJUDGE