SGA Security Solutions Limited v Wanjiru (Employment and Labour Relations Appeal E194 of 2025) [2026] KEELRC 2046 (KLR) (16 July 2026) (Judgment)

SGA Security Solutions Limited v Wanjiru (Employment and Labour Relations Appeal E194 of 2025) [2026] KEELRC 2046 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2046 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Employment and Labour Relations Appeal E194 of 2025 K Ocharo, J July 16, 2026 Between SGA Security Solutions Limited Appellant and Benard Gichuru Wanjiru Respondent (Being an appeal from the entire judgment of Hon. J.B. Kalo, Chief Magistrate, delivered on 29th August 2025 in Mombasa CM ELRC No. E604 of 2022 – Benard Gichuru Wanjiru v SGA Security Solutions Limited) Judgment A. Introduction 1.This is an appeal against the entire judgment of the learned trial magistrate, Hon. J.B. Kalo (CM), delivered on 29th August 2025 in Mombasa CM ELRC No. E604 of 2022, in which the trial court found that the Respondent's employment had been unfairly and unlawfully terminated by the Appellant, and entered judgment for the Respondent in the sum of Kshs 490,898.40, together with costs and interest. 2.The Respondent had been employed by the Appellant as a driver with effect from 8th October 2014 on a monthly salary of Kshs 18,200.00, and worked continuously until 2nd February 2022, when his services were summarily terminated on the ground of gross misconduct, namely, reporting for and being on duty while intoxicated. The Respondent thereafter instituted the suit before the trial court seeking terminal dues and compensation totalling Kshs 1,104,697.40. The Appellant resisted the claim, asserting that the termination was fair, lawful and procedurally compliant. 3.Being aggrieved by the judgment of the trial court, the Appellant filed the present appeal vide a Memorandum of Appeal dated 29th September 2025, raising five grounds of appeal, which are addressed in turn below. B. The Grounds Of Appeal 4.The Appellant's grounds of appeal, as set out in the Memorandum of Appeal, are that the learned trial magistrate erred in law and in fact:1.by holding that the Respondent was unfairly and unlawfully dismissed from employment despite the Appellant's compliance with sections 41, 43, 44 and 45 of the Employment Act, 2007;2.by failing to consider the Appellant's evidence on record which led to the Respondent's termination from employment;3.by awarding the Respondent (a) one month's salary in lieu of notice, (b) house allowance of Kshs 98,200.00 (correctly, Kshs 98,280.00), (c) underpayment of Kshs 174,218.40, and (d) compensation for unfair termination equivalent to ten months' salary (described in the Memorandum of Appeal as eleven months), notwithstanding that the termination was, in the Appellant's submission, fair and lawful;4.by shifting the burden of proof from the Respondent to the Appellant, when the onus lay on the Respondent to prove his case; and 5.By not considering the Appellant's evidence on record generally. C. The Appellant's Before The Lower Court 6.The Appellant called a single witness, Patrick Kilonzo, described as its Human Resource Manager, who testified that he knew the Respondent as a former employee through the company's records. It was his evidence that on or about 5th January 2022, while assigned duty as a driver, the Respondent was found drunk and unable to perform his duties at the Appellant's client's premises; that arrangements were made to convey him to a hospital to ascertain his level of intoxication, but that he alighted from the vehicle at traffic lights and disappeared, resurfacing only on 10th January 2022. 7.The Appellant's case is that the Respondent was thereafter suspended vide a letter dated 6th January 2022 and invited to a disciplinary hearing fixed for 24th January 2022; that the hearing did not proceed on that date because the Operations Manager was away and because the Respondent tendered a resignation letter of the same date, which he later verbally withdrew; that a fresh hearing was consequently agreed upon and held on 26th January 2022 in the presence of shop stewards, at which the Respondent admitted the misconduct and tendered a written apology of the same date; and that he was thereafter summarily dismissed vide letter dated 2nd February 2022 under section 44 of the Employment Act. 8.The Appellant contends that the trial court failed to have regard to this evidence, and to the documentary record comprising the attendance sheet, the disciplinary hearing minutes, the apology letter and the salary review letters said to demonstrate that the Respondent's salary was consolidated inclusive of house allowance, and erred in shifting the onus of proof onto the Appellant instead of holding the Respondent to the burden placed on him by section 47(5) of the Employment Act. D. The Respondent's Case Before The Trial Court 9.The Respondent's case, both before the trial court was that on 10th January 2022 he was summoned by the Appellant's Human Resource Officer, Caroline Wanga, and its Operations Manager, Norman Nyabinda, and issued with a suspension letter dated 6th January 2022 alleging that he had been found drunk on duty on 5th January 2022 and had thereafter absconded duty — allegations he denied in their entirety, asserting that he does not consume alcohol and had in fact reported for duty throughout the period in question. 10.The Respondent avers that he reported as directed on 24th January 2022 but no disciplinary hearing took place, and he was merely told to await further communication; that he was never issued with a notice to show cause; that he never tendered any resignation letter and never attended, still less consented to, any hearing on 26th January 2022; and that he was instead compelled, without notice and without an opportunity to call a witness of his choice, to attend a hearing on 27th January 2022, culminating in his summary dismissal on 2nd February 2022 by a letter which itself records that the disciplinary hearing was held on 27th January 2022 and that his services were terminated with effect from 28th January 2022. 11.The Respondent maintains that he never signed the attendance sheet of 26th January 2022, never wrote the apology letter attributed to him, and that the Appellant, having failed to issue a show cause notice, call the officers who purportedly conducted the disciplinary process, or produce any medical or corroborative evidence of intoxication, failed to discharge the burden resting on it under section 47(5) as read with sections 43 and 45 of the Employment Act. He supports the trial court's award in its entirety and prays that the appeal be dismissed with costs. E. Analysis And Determination 12.This being a first appeal, this court is obliged to re-evaluate the evidence adduced before the trial court, subject the same to fresh and exhaustive scrutiny, and draw its own conclusions of fact and law, bearing always in mind that it neither saw nor heard the witnesses and should make due allowance in that respect (see Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123). Two broad questions arise: first, whether the Respondent's termination was fair and lawful; and second, whether the specific monetary awards made by the trial court are sustainable. Grounds 1, 2, 4 and 5: Whether the termination was fair and lawful, and the burden of proof 13.Section 44(4)(b) of the Employment Act, 2007 permits an employer to summarily dismiss an employee who, during working hours, by becoming or being intoxicated, renders himself unwilling or incapable of performing his work properly. It is, however, well settled that a bare allegation of intoxication does not suffice; where the allegation is denied, as it was here, the employer must adduce sufficient, credible evidence — not mere assertion — that the employee was intoxicated to a degree that impaired his capacity to discharge his duties effectively. An allegation of gross misconduct of this nature is a serious one, going to the employee's livelihood and reputation, and cannot be established on suspicion or hearsay. 14.Section 47(5) of the Employment Act provides that the burden of proving that an unfair termination has occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer. As was held in Galgalo Jarso Jillo v Agricultural Finance Corporation [2021] eKLR, all that an employee need do to discharge the burden on him is to place before the court prima facie evidence that a termination occurred and that it lacked substantive justification or was procedurally flawed; the burden thereafter shifts to the employer to justify the termination. This accords with the position taken in Josephine M. Ndungu & Others v Plan International Inc [2019] eKLR, and with the Court of Appeal's holding in Muthaiga Country Club v Kudheiha Workers [2017] eKLR, that once an employee lays the basis for a claim of unfair termination, sections 43(1) and 47(5) place upon the employer the burden of proving the reasons for, and justifying the grounds of, the termination. The trial court cannot, on this record, be said to have shifted the burden of proof; rather, it correctly required the Appellant, once the Respondent had laid a prima facie basis for his claim by denying the allegations against him, to justify the termination — as the law requires. 15.Measured against this standard, the Appellant's case discloses material and unexplained deficiencies. First, nowhere in the record — neither in the suspension letter, the disciplinary minutes, nor the testimony of the Appellant's witness — is the person who is said to have found the Respondent intoxicated on duty on 5th January 2022 identified by name, nor was any such person called to testify. The allegation of intoxication, the very foundation of the summary dismissal, rests on an unattributed assertion. 16.Second, and tellingly, the Appellant's sole witness, Patrick Kilonzo, who testified as its Human Resource Manager, does not appear anywhere on the attendance sheet or in the minutes of the disciplinary hearing of 26th January 2022. Those documents instead record the presiding and attending officers as Caroline Wanga (the Human Resource Officer who signed both the suspension letter and the termination letter), Norman Nyabinda (Operations Manager), and several others. By his own account, Mr Kilonzo's knowledge of the matter was drawn from the company's records rather than personal participation in the events or the disciplinary process. The officers who were, on the Appellant's own documents, actually present at and central to the disciplinary process were not called to testify. Section 112 of the Evidence Act (Cap 80) places the burden of proving facts especially within a party's own knowledge upon that party; the Appellant, having chosen not to call the witnesses with direct personal knowledge of the alleged misconduct and the disciplinary process, cannot be heard to complain that the trial court declined to accept its version on the strength of untested documents alone. 17.Third, the Appellant's own documentary trail is internally inconsistent as to the very date of the disciplinary process said to justify the dismissal. The attendance sheet, the disciplinary hearing minutes and the apology letter relied upon by the Appellant are all dated 26th January 2022, yet the termination letter of 2nd February 2022 records that the Respondent "appeared before a disciplinary hearing on 27th January" and states that he was summarily dismissed "with effect from 28th January 2022." No explanation for this discrepancy was offered, whether at trial or in submissions. The Respondent, for his part, has been entirely consistent — from his Memorandum of Claim, through his witness statement, to his Reply to the Response to the Memorandum of Claim — in vehemently denying that any hearing took place on 26th January 2022, and in asserting that he was compelled to attend a hearing, without notice, on 27th January 2022. The Appellant neither sought to amend its pleadings to reconcile this inconsistency nor tendered any evidence to resolve it in its favour. 18.Fourth, the Respondent has consistently denied authorship of both the resignation letter dated 24th January 2022 and the apology letter dated 26th January 2022. Where the maker of a document denies having written or signed it, the evidential burden to prove its authenticity and due execution lies upon the party seeking to rely on that document, not upon the party disowning it. It was not for the Respondent to call a handwriting expert to disprove authorship; it was for the Appellant, as proponent of the documents, to establish their authenticity, whether by expert evidence or otherwise. No such evidence was tendered, and the trial court cannot be faulted for declining to give the documents weight. 19.Fifth, the disciplinary hearing minutes and attendance sheet were, as the trial magistrate correctly found and as the Appellant's own witness conceded on cross-examination, not signed by the Respondent. None of the persons shown on those documents as present — the shop stewards Jared Ogutu and Benjamin Osoro, or the Appellant's own officers Caroline Wanga, Norman Nyabinda, Enos Mwangi, Tom Okwoyo and Erick Oloo — were called to testify. Where the occurrence, conduct and fairness of a disciplinary hearing is squarely in dispute, the failure to call a single participant with first-hand knowledge of it leaves the Appellant's account resting, from an evidential standpoint, on paper that was neither authenticated nor tested by cross-examination. 20.Sixth, on the requirements of section 41 of the Employment Act: that section does not demand a document specifically styled a "show cause letter"; what it requires is that an employee be notified of the grounds upon which termination is contemplated, in a language he understands, and be accorded a hearing with a representative of his choice. The suspension letter of 6th January 2022 arguably met this threshold in respect of the hearing originally fixed for 24th January 2022, since it set out the allegations and a hearing date. That hearing, however, did not proceed as scheduled. Critically, nothing on the record — no letter, memorandum or notice of any kind — demonstrates that the Respondent was ever given written notice that the hearing had been rescheduled, whether to 26th or 27th January 2022. Whatever process in fact took place thereafter was accordingly not preceded by the written notice which section 41 contemplates, and the procedural defect identified by the trial court is made out independently of the factual disputes addressed above. 21.Guided by the principles in Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR and Walter Ogal Anuro v Teachers Service Commission [2013] eKLR, a lawful termination requires both a valid, substantively justified reason and a fair procedure. On the totality of the evidence, the Appellant established neither to the requisite standard. The learned trial magistrate cannot be faulted for declining to be persuaded by the Appellant's version, which was built on an unattributed allegation of intoxication, unauthenticated and internally contradictory documents, and the evidence of a witness who was not shown to have been present at the material events. The finding that the Respondent's termination was unfair and unlawful is well founded and is upheld. Grounds 1, 2, 4 and 5 of the appeal accordingly fail. Ground 3(a): One month's salary in lieu of notice 22.This ground is entirely parasitic on the Appellant's contention that the dismissal was a lawful summary dismissal under section 44, for which no notice is required. That contention having failed, the corollary — that no notice pay is due — falls with it. The award of Kshs 18,200.00 is upheld. Ground 3(b): House allowance 23.The Respondent pleaded and testified that his salary of Kshs 18,200.00 was a basic salary not inclusive of house allowance. Section 31 of the Employment Act obliges an employer either to provide an employee with reasonable housing or to pay a house allowance, and this is a statutory entitlement independent of an employee's basic wage. Far from establishing that the Respondent's pay was consolidated inclusive of housing, the very documents relied upon by the Appellant — the salary review letters of 29th September 2015 and 14th January 2019 — expressly record increases to the "basic salary" together with, in addition, "15% House Allowance," thereby treating the house allowance as a component payable over and above the basic wage rather than subsumed within it. On this record, the Appellant's own evidence undermines rather than supports its case on consolidation. The trial court's award of Kshs 98,280.00, confined to the three-year limitation period under section 90 of the Employment Act, is well founded and is upheld. Ground 3(b) fails. Ground 3(c): Underpayment 24.A different conclusion follows on the claim for underpayment. A party who alleges that he has been paid below a statutory minimum bears the burden of identifying, and placing in evidence, the specific Wage Order or Legal Notice said to prescribe the applicable minimum wage for his category of employment, since general wage orders are reviewed and vary from time to time and are not matters of which a court can take judicial notice without proof. Neither the Memorandum of Claim, the Respondent's witness statement, nor his oral evidence identified any specific Wage Order; the figure of Kshs 23,039.40 advanced as the applicable minimum wage was asserted from the bar in submissions without evidentiary foundation. Moreover, the underpayment claim was pursued by reference to wage rates said to apply to a "long-distance truck driver," a category introduced for the first time at the submissions stage and never pleaded in the Memorandum of Claim; it is, in any event, inconsistent with the Respondent's own evidence that his duties involved transporting money to banks for the Appellant's customers within Mombasa County. It is trite that parties are bound by their pleadings, and a party cannot set up an entirely new factual basis for a claim at the submissions stage. The Respondent also did not specify the months in respect of which underpayment was said to have occurred. In these circumstances, the trial court fell into error in accepting the claim for underpayment absent the requisite proof. The award of Kshs 174,218.40 cannot stand and is set aside. Ground 3(c) succeeds. Ground 3(d): Compensation for unfair termination 25.Compensation under section 49(1)(c) of the Employment Act is a discretionary award, capped at twelve months' salary, to be assessed with regard to the factors set out in section 49(4), including the length of service and the circumstances of the termination. It is well established that an appellate court will not disturb the exercise of such discretion, or interfere with a trial court's assessment of quantum, save where it is demonstrated that the trial court took into account matters it ought not to have considered, failed to take into account matters it ought to have considered, or arrived at a figure so inordinately high or so inordinately low as to represent an entirely erroneous estimate (Kemfro Africa Limited t/a Meru Express Services (1976) v Lubia & Another (No. 2) [1985] eKLR). The Appellant's ground of appeal on this issue is confined to a bare assertion that the award was excessive; it neither identifies any irrelevant factor said to have been taken into account nor any relevant factor said to have been overlooked, nor does it engage with the principles upon which a discretionary award of this nature may be disturbed on appeal. Having regard to the Respondent's unbroken service of over seven years and the finding that the termination was both substantively and procedurally unfair, an award of ten months' salary, being Kshs 182,000.00 and well within the statutory ceiling, discloses no error of principle. Ground 3(d) fails. F. Disposition 26.For the foregoing reasons, the court makes the following orders:1.The appeal is allowed in part and dismissed in part.2.The finding of the trial court that the Respondent's termination from employment was unfair and unlawful is upheld.3.The award of Kshs 174,218.40 made in respect of underpayment is set aside.4.The awards of Kshs 18,200.00 (one month's salary in lieu of notice), Kshs 18,200.00 (unpaid salary for January 2022), Kshs 98,280.00 (house allowance) and Kshs 182,000.00 (compensation for unfair termination) are upheld.5.The judgment sum is accordingly varied from Kshs 490,898.40 to Kshs 316,680.00, together with interest thereon at court rates from the date of the trial court's judgment until payment in full.6.Each party shall bear its own costs of this appeal. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 16TH DAY OF JULY 2026.OCHARO KEBIRAJUDGE