https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1772

Mwange v G4S Kenya Ltd (Appeal E266 of 2025) [2026] KEELRC 1772 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1772 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E266 of 2025 M Mbarũ, J June 29, 2026 Between Patrick Mbiti Mwiti Mwange Appellant and G4S Kenya Limited Respondent (Being an appeal from the judgment of the Hon. E. Riany delivered on 30 July 2025 in Nairobi (Milimani) MCELRC NO. E879 of 2023) Judgment 1.The appeal arises from the judgment delivered on 30 July 2025 in Nairobi (Milimani) MCELRC No. E879 of 2023. The Appellant seeks that the Court allow the appeal and set aside the judgment of the trial court.The Appeal is on two grounds:i.The learned magistrate erred in law and fact in finding that the appellant was summarily dismissed and thus not entitled to payment in lieu of notice.ii.The learned magistrate erred in law and fact in finding that the appellant was both substantively and procedurally fairly dismissed. 2.The background of the appeal is the claim that the appellant filed before the trial court. His case was that he was employed by the Respondent in the year 2017 as a duty guard and worked diligently until 26 September 2022, when his employment was terminated by summary dismissal. His case was that there was no justified cause, hearing or right of appeal. The Respondent found the appellant dozing at 3:55 am, took pictures, and called him for a disciplinary hearing. He was accompanied by a shop steward, who made mitigation statements, while the appellant was not heard. He was dismissed in a disciplinary process that was substantively and procedurally unfair. The appellant claimed the following:a.Payment in lieu of notice Ksh. 15 270b.Salary for September Ksh 15,270c.Damages for unfair/unlawful termination at a maximum rate of 12 months’ salary, Ksh. 183,240d.Certificate of servicee.Punitive/exemplary damagesf.Costs of the suitg.Interests in all the above 3.In response, the Respondent denied all the claims, asserting that the dismissal was lawful, based on valid reasons, and that due process was upheld in accordance with the Employment Act. The Appellant’s employment was governed by an employment contract and the Respondent’s disciplinary code of conduct, which provided that sleeping on duty constitutes gross misconduct and attracts the sanction of summary dismissal. The Respondent’s response was that, on the night of 24 August 2022, the Appellant was stationed at the premises of the Respondent’s client, the British High Commission Gitanga Estates, on night duty. He was found sleeping on duty. By sleeping on duty, the Appellant risked his own life and security, as well as the lives of the Respondent’s clients to whom he had been engaged to provide security. He also put the Respondent’s contract with its clients at risk. The Appellant was issued with a notice of a disciplinary hearing on 25 August 2022, to be held on 30 August 2022, but it was subsequently postponed to 1 September 2022. The notice informed the Appellant of the charges against him, the time, date and place of the hearing, and he had 2 days to prepare for the hearing. He was expected to give responses during the disciplinary hearing and had the right to be accompanied by a representative of his choice from the company. His representations were considered at the hearing, together with the mitigation. He was dismissed and lodged an appeal, which was considered on 17 October 2022, and the dismissal was upheld. 4.The appellant further responded that the disciplinary process was unfair because he was not given a chance to defend himself, as the panel was not keen to listen to him. Only the shop steward accompanied him as his representative. When he appealed the matter, he did not appear before the panel to defend himself, and the disciplinary committee's decision was upheld. There being no prior record of misconduct by the appellant, the summary dismissal was harsh. 5.The learned magistrate heard the parties and held that under section 44 of the Employment Act (the Act), sleeping on duty, specifically in a security-sensitive position such as that of the appellant, constitutes gross misconduct warranting summary dismissal. The appellant did not deny sleeping at work or the photographic evidence presented in court. Whilst the appellant denied having been heard, he admitted a shop steward spoke on his behalf and did not say what barred him from defending himself or what circumstances led him to sleep on duty. In the absence of any justification or explanation from the appellant and given the seriousness of the misconduct, the court found the dismissal both substantively and procedurally justified. 6.Regarding the claim for notice pay, based on the findings that summary dismissal was justified, this was not due. 7.The claim for wages due for September 2022 was not due and was applied towards the appellant's loan repayment. 8.On the appeal, the appellant submitted that it was not demonstrated that the sleeping while on duty was willful, careless and amounted to neglect of duty, and the same cannot justify summary dismissal. Human beings are not machines, and it is inherently human to doze off momentarily, particularly when life circumstances are difficult. The appellant pleaded during the disciplinary hearing that he was facing challenges, particularly regarding his daughter’s school fees, and that the walking distance to work was very long. It cannot, therefore, be said that his conduct amounted to willful neglect of duty, especially considering that he had already handed over his duties, was in the presence of other guards, and it was the first time the Appellant had a disciplinary issue. 9.In Samson Buluma Mumia v DPL Festive Limited [2012] KEELRC 11 (KLR) and Oaga v G4S Kenya Limited [2022] KEELRC 4097 (KLR), the courts held that sleeping at work is not one of the grounds explicitly enumerated in section 44(4) of the Act as a ground for summary dismissal. The respondent should consider whether the occasion was a one-off or occurred regularly, and whether the same would have been avoided through training, the employee's length of service, the implications of sleeping at work, and the employee's health condition before termination. 10.On the reliefs, the appellant submitted that, taking into account that the appellant had served the respondent for five years, it was only fair and just, taking into account the unfair circumstances surrounding his dismissal, that he be awarded 12 months’ salary compensation. 11.The appellant also submitted that withholding of the appellant’s terminal dues by the Respondent on account of the alleged Nyali Sacco loan is devoid of any legal basis. In Securicor Guards (K) Ltd v Mohammed Saleem Malik & Another [2019] KEHC 8666 KLR, the court held that a contract affects only the parties to it. It cannot be enforced by or against a person not a party, even if the contract is made for his benefit and purports to give the right to sue or to make him liable upon it. 12.The respondent submitted that the question before the court is whether a reasonable employer, faced with the circumstances presented, could have reasonably done so. In CFC Stanbic Bank Limited v Danson Mwakuwano [2015] eKLR, the court held that in adjudicating on the reasonableness of the employer’s conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts, rather, it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts. 13.In Kenya National Private Security Workers Union v Security Guards Services Limited [2020] KEELRC 659 (KLR), where the employee admitted to sleeping at work and apologised, the court held that the employee, who was sleeping at work and admitted to such a fact, gave the employer reasonable cause to terminate employment. The case was proved on the balance of probabilities to be valid and fair. 14.In Samson Buluma Mumia v DPL Festive Limited [2012] KEELRC 11 (KLR), a case brought by the appellant, the proposition that sleeping on duty does not automatically justify summary dismissal is entirely distinguishable on its facts, as the employee in that case was a baker and a flour mixer, not a security guard, and had worked his contractual shift from 2 pm to 9 pm, then for a further overnight shift from 9.00 pm to 6.00 am. The case of Oaga v G4S Kenya Ltd [2022] KEELRC 4097 is also distinguishable and of limited persuasive value, as the Court in Oaga held that the respondent had failed to call any eyewitnesses or to produce any other evidence to prove that the claimant was sleeping at work. 15.On the reliefs, where a summary dismissal is justified, the claimant is not entitled to notice pay, compensation or salary that was applied to offset the loan. The appellant voluntarily executed a loan agreement which, under clause F (5), not only authorised monthly deductions towards repayment of the facility but also authorised the application of any sums due upon termination to offset the remaining balance. Determination 16.This being a first appeal, the court may review the record, reassess the finding, and reach a conclusion. The Court, however, should bear in mind that the trial had the opportunity to see and hear the witnesses and should therefore give this allowance. See Selle v Associated Motor Boat Company Ltd 1968 eKLR. 17.The appellant does not deny that on 23 August 2022, he was assigned night duties at the British High Commission’s premises and at 3.55 am, he dozed off. At the time, the supervisor found him and took photos of him while he was sleeping. 18.Under paragraph (6) of the Memorandum of Claim, the appellant admits to these facts. 19.The appellant was invited to a disciplinary hearing, and he attended together with a shop steward. 20.Under section 44 of the Act, the employer may terminate employment if the employee breaches a fundamental provision of the employment contract or commits gross misconduct. Due to the nature of the job, the employer may impose additional conditions and terms that, if breached by the employee, would constitute grounds for summary dismissal. 21.Thus, the appellant's sleeping while on night duty as a night security guard is tantamount to being absent from work. The justification that this is human nature and that the appellant had several personal issues weighing on his mind only exacerbates the circumstances, as stated by the respondent: he was found sleeping while on night duty. 22.In Gas Kenya Limited v Odhiambo [2022] KEELRC 3930 (KLR), the court heldthat a guard sleeping while on duty compromises the security operations of the client, the client’s property, and puts the life of the guard at risk. In Justus Atulo Ashioya v ‘A’ Team Security Limited [2014] KEELRC 568 (KLR), the court emphasised that the record of the employee who is alleged to be sleeping while at work is necessary and should be produced to confirm such fact. 23.In this case, the appellant admitted to sleeping at work, and the respondent produced records and photographs showing him sleeping at work. The learned magistrate analysed these facts and correctly held that there was gross misconduct that justified summary dismissal. 24.Indeed, upon the finding of justified summary dismissal, the remedy of notice pay and compensation is not available to the appellant. The findings by the learned magistrate are correct. 25.Regarding the wage due for September 2022, the employee should be paid for work performed at the end of employment. However, sections 17 and 19 of the Act allow lawful deductions authorised by the employee. He had secured a loan that was being offset from his wages. At the end of employment, such amounts are due and deductible from the terminal dues, as held in Elkana Sweta Makokha v Bob Morgan Services Limited [2014] KEELRC 1505 (KLR).The findings by the learned magistrate in this regard cannot be faulted. 26.The appeal has no merit and is dismissed with costs to the respondent. Findings in Nairobi MCELRC No. E879 of 2023 is confirmed. DELIVERED IN OPEN COURT THIS 29TH DAY OF JUNE 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Samuel Maruga……………………………………………… and………………….…………………………..