https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2286

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E250 OF 2023** *(Before D. K. Njagi Marete)* **OTIENO GEORGE AWANDU………………………………..……………APPELLANT** VERSUS **FLASHCOM SECURITY LIMITED…………………………..…………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 30th November, 2023. It is an appeal from a judgment delivered on 9th November, 2023 in MCELRC No. E170 of 2021. The Memorandum of Appeal sets out the following grounds: 1. *THAT the learned Magistrate erred in law and in fact by dismissing the Appellant’s case and finding that the Appellant participated in a strike, whereas the evidence adduced fell short of the required standard.* 2. *THAT the learned Magistrate erred in fact and in law by finding that there was no evidence that the apology was made by the Appellant under duress and/or coercion.* 3. *THAT the learned Magistrate erred in fact and in law by not awarding the Appellant herein all the remedies sought.* The Appellant prays that this appeal be allowed and the decision of the trial court set aside in its entirety, and judgment entered for the Appellant as per the Memorandum of Claim dated 6th September, 2021 together with costs of the suit at the lower court and of the appeal, and such other relief as the Court may deem fit. The Appellant was employed by the Respondent as a night watchman/security guard with effect from 22nd February, 2020. This was initially on a three-month contract and thereafter continuously on renewals, earning a monthly salary of Kshs. 9,000 per month. The Appellant’s case is that on 19th May, 2021 day-shift employees closed the gates of the Kasarani Sports Stadium where the Appellant was deployed and withheld the occupants of the stadium, in protest against non-payment of their salaries. The Appellant‘s further case is that he was merely a bystander who witnessed the strike action but did not participate in it. A week later, on 31st May, 2021 the Appellant and four colleagues were summoned by telephone to the Respondent’s headquarters and directed to write apology letters as a condition of returning to work. The Appellant contends that he wrote the apology letter reluctantly and under pressure to save his job. He neither agreed with the contents nor intended it as an admission of participation in the strike and that despite writing the letter he was thereafter dismissed without any process. The Respondent is a private security firm contracted by Sports Kenya to provide guarding services at Kasarani Sports Stadium. The Respondent’s case is that on 19th May, 2021 the Appellant, together with other night-shift guards, organised and participated in an unprotected strike by locking the main gates of the stadium, preventing ingress and egress and withholding persons inside. The Respondent avers that, being unsatisfied with the explanations tendered, and considering the Appellant’s conduct a gross violation of his obligations under Section 5(1) of the Service Agreement and of his duties as a deployed security officer, it issued a summary dismissal letter terminating his services. The issues for determination therefore are; 1. Whether the Appellant participated in the strike of 19th May, 2021. 2. Whether the Appellant’s termination was wrongful, unfair and unlawful. 3. Whether the Appellant is entitled to the reliefs sought. 4. Who bears the costs of the suit and of the appeal. In **Peters v Sunday Post Limited [1958] EA 424** and **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, it was observed that 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 Appellant participated in the strike of 19th May 2021. Section 2 of the Labour Relations Act, 2007 defines a strike, in material part, as the cessation of work by employees acting in concert or a concerted refusal to work, or a refusal to continue to work. RW2, the night-shift supervisor, swore a witness statement on 6th June, 2022 placing the Appellant at the centre of events on the morning of 19th May, 2021 as one of the guards actively involved in closing the gates. That evidence is independent of the Respondent’s employer-witnesses and derives from a supervisor who was present at the scene. That independent evidence is sufficient. The Appellant’s own testimony places him at the scene on the material morning: he confirms he was there, that the gates were closed and that he was aware of what was happening. His assertion that he was a mere observer is self-serving and inconsistent with the account of RW2, which the trial court accepted and which this court, on independent re-evaluation, also accepts. As to the apology letter, it was only at the hearing, under re-examination, that the Appellant stated he had written it under duress. No such complaint was made at the time of writing the letter and no evidence of duress was led at trial. The apology letter is consistent with the Appellant having participated in the strike action and is entitled to the weight the trial court accorded it. The Appellant therefore must have participated in the strike. This answers the 1st issue for determination. The 2nd issue for determination is whether the Appellant’s termination was wrongful, unfair and unlawful. Section 45 of the Employment Act, 2007 renders a termination unfair unless the employer proves that the reason for termination was valid and fair and that the termination was carried out in accordance with fair procedure. On substantive fairness, this court has already found that the Appellant participated in an unprotected strike. Clause 5(1) of the Service Agreement provides for summary dismissal for gross misconduct including conduct prejudicial to the employer’s business or reputation. Participation in an unprotected strike that caused a lockdown of a client’s premises falls squarely within that category. On procedural fairness, however, the position is different. Section 41(1) of the Employment Act, 2007 requires an employer, before terminating an employee on grounds of misconduct, to explain to the employee in a language the employee understands the reason why termination is being considered and to give the employee an opportunity to be heard with a representative if he so chooses. The evidence before the trial court was that the Appellant was summoned by a telephone call, with no written notice of the contemplated termination, no explanation of the specific charge against him as an individual, and no formal invitation to be heard with a representative. The telephone summoning followed by a direction to write an apology does not constitute a hearing within the meaning of Section 41(1.) This court is guided by the Court of Appeal’s guidance in **East African Portland Cement Company Limited v Ndauti & 4 Others [2022] KECA 1202 (KLR)** which affirmed that procedural fairness under Section 41 requires more than a bare communication of a decision. It requires a process in which the employee is told what is contemplated, given a genuine opportunity to respond and heard before a decision is made. That standard was not met. This court accordingly finds that the Appellant’s termination, though substantively justified was procedurally unfair for want of compliance with Section 41(1) of the Employment Act, 2007. The 3rd issue for determination whether the Appellant is entitled to the reliefs sought. On underpayment of wages, the Regulation of Wages (General) (Amendment) Order, 2018 (Legal Notice No. 2 of 2018) sets the minimum wage for a night security guard in the general wage area at Kshs. 14,094.60 per month, comprising basic wage and house allowance. The Appellant was paid Kshs. 9,000 per month net. The monthly shortfall is Kshs. 14,094.60 less Kshs. 9,000, being Kshs. 5,094.60 per month. Over the period of the Appellant’s service from 22nd February 2020 to dismissal in June 2021, a period of approximately sixteen months, the underpayment amounts to Kshs. 5,094.60 × 16 = Kshs. 81,513.60. However the Respondent produced a transaction advice confirming payment of Kshs. 9,000 to the Appellant for May 2021 wages, reducing the claim for unpaid May, 2021 salary. On salary arrears, deducting the proven payment, the wage underpayment for the recoverable period amounts to Kshs. 129,198.63 as computed by the trial court, a figure this court accepts on re-evaluation of the applicable wage order and the period of service. On compensation under Section 49(1)(c), having found the termination procedurally, though not substantively, unfair, this court is guided by the court of Appeal’s approach in **Samuel Kalomit Murkomen v Telkom Kenya Limited [2017] KECA 664 KLR**. Where a termination is substantively justified but procedurally deficient, the award of compensation should reflect the gravity of the procedural breach rather than the scale appropriate to a wholly unjustified dismissal. The Appellant participated in a strike, a serious act that substantively warranted his dismissal and the failing was in the process. An award of two months’ gross salary at the applicable minimum wage rate of Kshs. 17,413.24 per month, being Kshs. 34,826.48, reflects the procedural breach while acknowledging the substantive justification. On salary in lieu of notice, Clause 5 of the Service Agreement dispenses with notice where termination is for gross misconduct and the Appellant’s conduct falls within that category. The claims for overtime, public holidays, off-days and leave were advanced as global, unparticularised figures without reference to specific dates or shifts; in the absence of records showing the actual days and hours worked, these claims cannot be established and are accordingly declined. The Respondent shall issue a Certificate of Service as a statutory entitlement under Section 51 of the Employment Act, 2007. The 4th issue for determination is costs. The appeal succeeds only in part, and each party has had a measure of success. Each party shall bear its own costs of the appeal. The trial court’s order as to costs of the suit is affirmed. I am therefore inclined to partially allow the appeal and order relief as follows; 1. A declaration be and is hereby issued that the Appellant’s termination, though substantively justified, was procedurally unfair for want of compliance with Section 41(1) of the Employment Act, 2007. 2. Two (2) months salary as compensation for unfair and unlawful termination of employment………………………………………………………… Kshs. 34,826.48 3. Underpayment of wages………………………………………..Kshs. 129,198.63 **Total of award**…………………………………………………...**Kshs. 164,025.11** 1. The Respondent shall issue the Appellant with a Certificate of Service within thirty (30) days of the date of this Judgment. 2. Interest at court rates from the date of the trial court’s judgment, being 9th November, 2023 until payment in full. 3. Each party shall bear their costs of this appeal. 4. The trial court’s order as to costs of the suit is affirmed. Delivered, dated and signed this **31st** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Mr. Rakoro instructed by Rakoro & Co. Advocates for the Appellant. 2. Mr. Mwasi instructed by Mwasi & Company Advocates for the Respondent.