https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/783

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. 245 OF 2019** **MOHAMED OMAR SHEIKH.....................................................................CLAIMANT** **VERSUS** **MOTREX LIMITED................................................................................RESPONDENT** **JUDGEMENT** 1. The Claimant, Mohamed Omar Sheikh, instituted these proceedings against his former employer, Motrex Limited, vide a Memorandum of Claim dated 1st April 2019. He alleged that his employment had been unlawfully and unfairly terminated and further sought payment of various terminal and employment dues. 2. The reliefs pleaded were unpaid salary for October 2017 of KShs.12,588; one month’s salary in lieu of notice of KShs.12,588; house allowance for the period November 2008 to October 2017 of KShs.203,926; unpaid public holidays for nine years of KShs.96,840; outstanding leave for November 2008 to October 2017 of KShs.113,292; twelve months’ compensation for unfair termination of KShs.151,056; a Certificate of Service; costs and interest. The Claimant’s final submissions reproduced these prayers, although they refer to the unpaid salary as being for “October 2019”; I treat that reference as inconsistent with the pleaded case and the evidence, which relate to October 2017. 3. The Respondent opposed the claim through its Reply to the Memorandum of Claim. Significantly, it admitted portions of the Claim concerning the employment relationship. The Respondent's own final submissions similarly state that the Claimant was its employee from November 2008 until October 2017 and worked as a security guard. It nevertheless maintained that the termination was lawful because the Claimant was asleep while on security duty when thieves entered its premises. Procedural history 1. The record reflects that the matter was heard on 1st March 2022 before Hon. G. Kiage, when the Respondent was recorded as having closed its case. The matter subsequently came up for further hearing on 10th September 2024 before Hon. N. Akee, when the Claimant testified. During his testimony on 10th September 2024, the Claimant stated, inter alia, that he had never been issued with a Certificate of Service. 2. Defence evidence was subsequently taken before this Court on 20th May 2025 when Mr. Ali and Mr. Thomas testified and were cross-examined. I have considered the testimony on record together with the parties' documentary evidence and final submissions. The Claimant’s case 1. The Claimant's evidence was that he commenced employment with the Respondent in November 2008 and continued working until October 2017 as a security guard. At the time of separation, his pleaded basic monthly salary was KShs.12,588. 2. The Claimant stated that on or about 1st October 2017 at around midnight he was stationed at the rear portion of the Respondent's premises at Mikindani together with other guards. He heard other guards shouting that robbers had entered the premises and proceeded towards the entrance. 3. According to him, upon arriving at the front area, he was informed that the thieves had already escaped and that another security guard who had been guarding the middle section of the yard had also fled. 4. The Claimant maintained that on the following day the guards were shown CCTV footage which, according to him, demonstrated that he reacted immediately upon hearing the commotion and proceeded to the scene but found that the thieves had escaped. 5. His case was that approximately one week after the incident, one Ms. Habiba, whom he identified as the Respondent's personnel officer, summoned him and informed him that his services had been terminated. 6. He denied having been subjected to a lawful disciplinary procedure and maintained that he had not been afforded a sufficient opportunity to respond to the allegations against him. 7. In the final submissions, the Claimant particularly challenged the Notice to Show Cause dated 3rd October 2017. His position was that service of that document was disputed and that, in any event, both the notice and the invitation to the disciplinary hearing were issued on the same date, thereby giving him no reasonable opportunity to prepare his defence. 8. He further challenged a written statement produced by the Respondent. The Claimant submitted that, during cross-examination, a Respondent's witness accepted that the statement had been recorded on his behalf and that the signature appearing on the document did not appear to be his. He additionally contended that the CCTV footage relied upon by the Respondent was never furnished to him. 9. As regards the monetary claims, the Claimant maintained that he had not been allowed annual leave for the period November 2008 to October 2017; that his salary did not incorporate house allowance; and that he worked during public holidays without the applicable additional remuneration. He placed reliance upon the employer’s statutory obligation to keep employment records. The Respondent’s case 1. The Respondent's case was materially different. Its evidence was that the Claimant was a security guard whose fundamental duty was to keep watch over and safeguard the Respondent's premises. 2. Documentary evidence produced by the Respondent included an employment form dated 21st May 2016 describing the Claimant as a security guard. The form records salary payable as KShs.12,221 plus KShs.2,500. It also makes reference to previous employment with Motrex Limited. That employment form, however, does not displace the Respondent's express admission in the pleadings and final submissions that the employment relationship ran from November 2008 to October 2017. 3. The Respondent's position was that during the night of 1st/2nd October 2017 thieves gained entry into its yard and stole computers from four trucks. On 3rd October 2017, the Respondent issued a show-cause letter informing the Claimant that a theft had occurred at about 3.00 a.m. while he was on duty and that security-camera footage indicated that his reaction to the incident had not been prompt. He was required to show cause in writing why disciplinary action should not be taken against him. The letter was copied to the Transport Workers Union. 4. The Respondent also issued a summons to a disciplinary hearing on 3rd October 2017 concerning the theft. That invitation was likewise copied to the Transport Workers Union. 5. The handwritten disciplinary minutes are central to the dispute. They record attendance by management personnel, a shop steward, the Claimant and another security guard, Dida Guyo. 6. The Claimant initially maintained at the hearing that he had been guarding his assigned rear section of the yard and did not see the thieves. When asked whether he had been awake, he initially said that he was awake and simply did not see them. 7. Dida Guyo's account, as recorded in the minutes, was that after the guards regrouped during the incident they noticed that the Claimant was missing. They searched for him and allegedly found him asleep behind or among the trucks. Dida said that he woke him and informed him that thieves were in the yard. 8. When the Claimant was asked whether he agreed with Dida's account, the minutes record him admitting, in substance, that he had been asleep throughout the incident, had not heard anything, had been woken by Dida and had merely laid his head down for a while. He apologised. 9. The disciplinary minutes ultimately record a recommendation/conclusion of termination, with the decision stated to have been collectively agreed upon by the employer representatives and the shop steward present. 10. A termination letter dated 16th October 2017 terminated the Claimant's employment with immediate effect on account of the theft incident in which computers had been stolen from four trucks. 11. The documentary record further includes a final-dues/payment voucher dated 17th November 2017 which made provision for salary for part of October 2017, leave pay and one month's notice. 12. The Respondent also produced a Certificate of Service dated 31st August 2018. Importantly, the Certificate bears the Claimant's own handwritten acknowledgment and signature confirming that he received it on 31st August 2018. This last document directly contradicts the Claimant's oral testimony on 10th September 2024 that he had never been issued with a Certificate of Service. 13. The Respondent therefore argued that the Claimant was lawfully dismissed because sleeping while on duty constituted gross misconduct by a security guard. Its submissions identify the principal questions as the fairness of termination, entitlement to the monetary remedies, limitation and costs. **Issues for determination** 1. Having considered the pleadings, evidence and submissions, I frame the issues for determination as follows: 2. Whether there existed a valid and fair reason for termination; 3. Whether the Respondent followed a fair procedure; 4. Whether the Claimant has proved the monetary and other reliefs sought; 5. The effect of limitation upon the historical claims; and 6. who should bear the costs of the suit. Whether there was a valid and fair reason for termination 1. Sections 43 and 45 of the Employment Act place upon an employer the burden of demonstrating the reason for termination and that such reason was valid and fair. 2. Section 44(4) of the Act recognises conduct amounting to gross misconduct, including wilful neglect to perform work which it was an employee's duty to perform or the careless and improper performance of work which, from its nature, the employee was required to perform carefully and properly. 3. A security guard is employed principally to maintain vigilance and safeguard the premises entrusted to him. Sleeping while on active guard duty substantially defeats that purpose. 4. There is conflicting evidence regarding the CCTV footage. The footage itself was not produced before this Court. I therefore do not base the determination of substantive fairness on what the footage allegedly showed. 5. Neither do I find it necessary to place decisive reliance upon the separate written statement whose authorship and signature were disputed by the Claimant. 6. The more significant evidence is contained in the disciplinary minutes. Those minutes record the Claimant's own admission that he was asleep, that he did not hear anything during the incident, and that another guard woke him. The admission was made after Dida Guyo's version was put to him. 7. I have considered the Claimant's subsequent denial and his contention that he had merely been stationed at the rear section. However, the contemporaneous disciplinary record is more persuasive than the later denial made in litigation. 8. The Respondent's final submissions correctly emphasise that its case need not ultimately stand or fall upon the disputed CCTV footage if the employee's own admission independently established the misconduct. 9. I consequently find, on a balance of probabilities, that the Claimant was asleep while assigned to security duty during the material incident. 10. Given the nature of his duties, that conduct constituted a serious dereliction of duty and provided the Respondent with a valid and fair substantive reason to take disciplinary action, including dismissal. I therefore find that the dismissal was substantively justified. Procedural fairness 1. Substantive justification does not, however, dispense with the requirements of procedural fairness. Section 41 of the Employment Act requires an employer contemplating termination for misconduct to explain the allegation to the employee in a language he understands, allow the employee representation by another employee or shop-floor union representative, and hear and consider the representations made before making the decision. 2. The evidence demonstrates that a Notice to Show Cause was issued on 3rd October 2017. The disciplinary invitation was also issued on 3rd October 2017, and the disciplinary hearing itself was held that same day. 3. It is favourable to the Respondent that a shop steward was present during the disciplinary proceedings and that the Transport Workers Union had been copied in the correspondence. The Claimant was also actually heard and made representations. 4. Nevertheless, the temporal aspect of the process cannot be ignored. The allegation arose from a serious incident carrying the possibility of termination. Issuing a Notice to Show Cause and simultaneously requiring the employee to attend the disciplinary hearing on the same day afforded effectively no meaningful period to reflect upon the accusation, consult his representative, consider the alleged CCTV evidence or prepare his defence. 5. The Claimant relied upon Nyambu v Consolbase Limited [2025] KEELRC 260 (KLR), Kibos Distillers v Onyango [2025] KEELRC 2590 (KLR), and other authorities stressing that an employee must be afforded reasonable time to prepare for disciplinary proceedings. His submissions correctly point out that the show-cause and disciplinary processes were initiated simultaneously. 6. I am alive to the Respondent's argument that the employee ultimately admitted the misconduct and suffered no prejudice. I agree that the admission considerably strengthens substantive justification. It does not, however, retrospectively cure every procedural deficiency. 7. The statutory requirement of a hearing is not merely a search for an admission. It is intended to give an employee a genuine and meaningful opportunity to respond before the employer arrives at the decision. 8. In the circumstances, I find that the same-day notice and disciplinary hearing did not afford the Claimant reasonable opportunity to prepare for a matter carrying the ultimate sanction of loss of employment. The termination was therefore procedurally unfair, notwithstanding that it was substantively justified. Compensation for unfair termination 1. Section 49(1)(c) of the Employment Act confers discretion to award compensation of up to twelve months' gross wages where termination is found unfair. The factors in section 49(4), including the employee's contribution to the termination, must be considered. 2. The Claimant served for a substantial period. However, his own misconduct was the principal cause of the separation. As a security guard, falling asleep while responsible for the Respondent's premises was serious misconduct, and a theft occurred during the same period. This is therefore not an appropriate case for the twelve months' maximum compensation claimed. 3. The unfairness found by the Court relates principally to the abbreviated disciplinary procedure. Taking into account the Claimant's length of service but giving significant weight to his contribution to the termination, I consider one month's basic salary adequate compensation. The pleaded salary for purposes of the claim is KShs.12,588. I accordingly award KShs.12,588 as compensation for procedural unfairness. Salary for October 2017 1. The Claimant sought KShs.12,588 as unpaid salary for October 2017. He did not work for the entire month because the termination took effect in mid-October. The Respondent's final-dues voucher itself recognises salary for the part of October worked. 2. The Claimant has, however, not demonstrated on a balance of probabilities that the amount recognised in the final-dues process remained unpaid. The documentary record includes the final-dues/payment voucher, while the claim is pleaded as a full month's salary notwithstanding the mid-month termination 3. The claim for KShs.12,588 as a full unpaid October salary is therefore not proved and is dismissed. Salary in lieu of notice 1. The Claimant seeks one month's salary in lieu of notice. Ordinarily, an employee lawfully summarily dismissed for gross misconduct under section 44 is not entitled to notice or payment in lieu thereof. 2. I have found that the substantive reason justified summary dismissal. The finding of procedural unfairness does not alter the character of the established misconduct. 3. Further, the Respondent's final-dues voucher made provision for a month's notice, notwithstanding the summary dismissal. The Claimant has not established that the amount appearing on that voucher remained outstanding. The separate prayer for KShs.12,588 in lieu of notice is therefore dismissed. House allowance 1. The Claimant seeks KShs.203,926, calculated as house allowance for nine years. The salary vouchers produced reveal an important distinction. Earlier salary vouchers contained a house-allowance column without a separate amount being entered. However, the later payroll records, including those immediately preceding termination, expressly record a separate house allowance of KShs.2,500 in addition to basic pay. 2. The Claimant therefore cannot successfully maintain that no house allowance whatsoever was paid throughout the employment period. There is also the question of limitation. The claim was instituted on 1st April 2019. Recurring monetary entitlements which independently accrued outside the statutory limitation period cannot be revived merely because the employment relationship subsequently continued. 3. To the extent that any historical house-allowance shortfall allegedly accrued outside the actionable period, it is statute-barred. Within the residual period, the documentary evidence shows that house allowance was in fact separately paid. The claim for KShs.203,926 house allowance is therefore dismissed. Public holidays 1. The Claimant sought KShs.96,840 for work allegedly performed during public holidays over nine years. Such a claim is capable of precise ascertainment and must therefore be specifically proved. It is insufficient merely to state that because a person was a security guard he must necessarily have worked on every public holiday over nine years. 2. Although the Memorandum particularised numerous public holidays, the Claimant did not produce duty rosters, attendance records or other evidence identifying the particular public holidays actually worked and demonstrating non-payment. The historical component is additionally affected by limitation. The claim for KShs.96,840 public-holiday pay is accordingly dismissed. Annual leave 1. The Claimant sought KShs.113,292 for leave allegedly outstanding from November 2008 to October 2017. Section 28 of the Employment Act entitles an employee to annual leave. Employers are additionally required to maintain employment records. 2. However, the prayer before the Court seeks a wholesale award for approximately nine years without identifying the leave years in respect of which leave was accrued, carried forward, taken or paid. 3. Claims for annual leave are also subject to statutory limits governing accrual and the period within which leave may be carried forward. The law does not contemplate indefinite accumulation of annual leave for the entirety of a lengthy employment relationship without regard to section 28 and limitation. 4. Moreover, the Respondent's final-dues voucher expressly made provision for a number of leave days at termination. This undermines the proposition that the Claimant had nine years of wholly unpaid leave. On the evidence before me, the blanket computation of KShs.113,292 has not been proved. The claim is therefore dismissed. Certificate of Service 1. The Claimant prayed for issuance of a Certificate of Service and, during oral testimony on 10th September 2024, stated that he had never been issued with one. That testimony is demonstrably inconsistent with the documentary evidence. 2. A Certificate of Service dated 31st August 2018 was produced. It bears an acknowledgment in the Claimant's own handwriting and his signature confirming receipt on that same date. I therefore find as a fact that a Certificate of Service was issued to and received by the Claimant on 31st August 2018. The prayer for issuance of a further Certificate of Service is consequently spent and is dismissed. 3. I also observe that the inconsistency between the Claimant’s testimony and his written acknowledgment affects the reliability of his evidence on this particular issue. I do not, however, consider it necessary to use that contradiction as a basis for rejecting every other aspect of his case. Costs and interest 1. Both parties have achieved a measure of success. The Respondent has established a valid substantive reason for termination and defeated the substantial monetary claims, while the Claimant has succeeded on the question of procedural fairness. In those circumstances, I consider it just that each party bear its own costs. 2. The award of KShs.12,588 shall attract interest at court rates from the date of this Judgment until payment in full. **Final orders** 1. In the result, judgment is entered in the following terms: 2. A declaration is hereby issued that the Respondent had a valid and fair substantive reason to terminate the Claimant's employment but the termination was procedurally unfair for failure to afford the Claimant reasonable time to prepare for the disciplinary hearing. 3. The Claimant is awarded KShs.12,588, equivalent to one month's basic salary, as compensation for procedural unfairness. 4. The claims for unpaid October salary, salary in lieu of notice, house allowance, public-holiday pay and outstanding leave are dismissed. 5. The Court finds that a Certificate of Service dated 31st August 2018 was issued to and received by the Claimant on 31st August 2018, as acknowledged by him in his handwriting and signature. The prayer for a Certificate of Service is therefore spent. 6. Interest on the awarded sum shall accrue at court rates from the date of Judgment until payment in full. 7. Each party shall bear its own costs. Judgment accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**