Requirements for a lawful termination of employment and the burden of proof on employers: Protective Custody Limited v. Tom Omunabi Omukuba

The recent case of Protective Custody Limited v. Tom Omunabi Omukuba analyzed the requirements for a lawful termination of employment and the burden of proof on employers to demonstrate fair procedure. Justice Baari examined whether the employer took reasonable steps to notify the employee prior to dismissal and maintained proper employment records. The case underscores the need for written contracts stipulating terms of employment and highlights the court's discretion in determining appropriate compensation for unfair termination.

Title: Protective Custody Limited v. Tom Omunabi Omukuba

Court: Employment and Labour Relations Court at Kisumu

Judge: C.N. Baari

Facts of the Case:

  • Omukuba was employed by Protective Custody Ltd as a security guard from 2013 to 2019.

  • He was dismissed for allegedly deserting duty after he stopped reporting to work.

  • Protective Custody claimed they notified him of the termination but he denied receiving any letters.

  • Omukuba sued for unlawful termination and payment of unpaid dues. The lower court found the dismissal unlawful and awarded him compensation.

  • Both parties appealed against the compensation amount.

Key Issues:

  • Whether Omukuba was accorded fair termination procedure.

  • Whether the compensation amount awarded was appropriate.

Court's Determination:

  • The court upheld that the termination was unlawful for lack of proof that Omukuba was notified prior to dismissal.

  • The compensation amount was set aside for lack of specificity on each head of claim.

  • After analyzing each prayer, the court awarded specified amounts for unpaid salary, leave pay, notice pay and 3 months' salary as compensation.

  • Claims for overtime, allowance and NSSF deductions were disallowed for lack of proof.


  • Employers must demonstrate reasonable efforts to reach out to employees before dismissing them.

  • Lack of written contracts and proper employment records disadvantaged the employer.

  • Courts have discretion to determine appropriate compensation for unfair dismissal based on circumstances.

  • Burden is on the claimant to prove specific claims through documentation.