Lavington Security Guards Lose Appeal as Court Upholds KSh840,740 Award to Sacked Guard

A night guard accused after a burglary at Nairobi’s upscale Lavington estate has won a decisive court victory, with the Employment and Labour Relations Court dismissing his former employer’s appeal and affirming an award of KSh840,740 for unlawful dismissal.

In a strongly worded judgement, Justice D. K. Njagi Marete ruled that Lavington Security Guards Ltd failed to prove either of the reasons it relied upon to dismiss Charles Nyasuni Maroa, a guard who had served the company for almost 19 years.

The judge further found that the employer ignored mandatory disciplinary procedures before ending his employment.

The decision is another reminder that Kenyan employers cannot rely on suspicion alone when terminating workers.

They must prove misconduct and follow the due process laid down under the Employment Act.

The dispute traces back to the night of May 24 and 25, 2018, when Maroa was guarding Sandalwood Apartments along Gitanga Road in Nairobi’s Lavington neighbourhood.

After residents reported missing property, the security company blamed the veteran guard, alleging he failed to prevent the burglary.

The company also accused him of disappearing from work for seven consecutive days without permission.

On those grounds, it summarily dismissed him in June 2018.

Maroa painted a different picture.

He told the court his supervisor instructed him not to report back until investigations into the incident were completed.

Written Instructions

He complied with those instructions and even submitted a written explanation denying any involvement.

When he later returned to the company’s offices, he expected an update. Instead, he was handed a dismissal letter.

Those competing narratives became the centrepiece of years of litigation.

Justice Marete found the employer’s case unravelled under its own evidence.

Its witness admitted police had been informed about the alleged burglary but conceded the company never established the outcome of investigations.

More importantly, Maroa was never arrested or charged with any criminal offence.

“Mere suspicion, standing alone and unsubstantiated by any investigation or prosecution, cannot constitute a valid reason for summary dismissal,” the judge held.

That finding effectively dismantled the employer’s first justification for firing the guard.

The second reason suffered the same fate.

Dismissal Letter

While the dismissal letter accused Maroa of absconding duty, the company’s own witness admitted during cross-examination that the employee had actually stayed away with permission.

The contradiction proved fatal.

“This court finds that the trial court was correct in holding that the Appellant failed to prove the reasons for termination,” Justice Marete concluded.

The court then turned to an equally important question – whether the dismissal process itself complied with Kenyan labour law.

Again, the answer was no.

The judgement found there had been no disciplinary notice, no hearing, no opportunity for Maroa to defend himself and no consideration of the written explanation he had already submitted.

Instead, he simply received a dismissal letter.

Relying on the long-established precedent in Mary Chemwemo Kiptui v Kenya Pipeline Company Ltd, the judge reiterated that Section 41 of the Employment Act makes disciplinary hearings mandatory before dismissal on grounds of misconduct.

“The termination of the Respondent’s employment was unlawful, unfair and wrongful,” the court declared.

Financial Consequences

The ruling also carried significant financial consequences.

Lavington Security Guards challenged almost every component of the magistrate’s original award, arguing the compensation was excessive and the calculations legally flawed.

The court disagreed.

Justice Marete upheld KSh13,500 in notice pay after rejecting claims that Maroa deserted work.

He also sustained KSh135,000, equivalent to ten months’ salary, as compensation for unfair dismissal, noting the employee had served nearly nineteen years without any previous disciplinary record.

The judge further affirmed awards for unpaid leave, overtime, work performed during public holidays and wage underpayments.

Perhaps most significantly, the court rejected the employer’s attempt to reduce overtime and public holiday compensation by using lower wage rates applicable to day guards rather than night guards.

It also noted the company failed to produce employment records showing overtime payments or compensatory time off.

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Under Section 74 of the Employment Act, employers bear the responsibility of maintaining such records. Failure to do so, the court observed, weighs against them when employment disputes arise.

The final award comprised KSh13,500 in notice pay, KSh135,000 for unfair termination, KSh13,500 for untaken leave, KSh186,840 in overtime, KSh410,000 for work on public holidays and KSh81,900 in wage and house allowance underpayments, bringing the total to KSh840,740.

Interest and appeal costs were also awarded against the company.

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