Lihanda Ada Yohana v Kenya Nut Company Limited [2018] KEELC 4895 (KLR)

Employment and Labour Relations Court of Kenya

6 December 2018

MMM. Mbaru

1,294 words in judgment

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The bottom line

Kenya's Employment Court ruled that taking employer property without proving it was allowed can lawfully end your job, even if dismissal seems harsh.

What this practically means

Executive summary

The claimant, employed by the respondent as a General Worker from 4th October 2012, claimed his employment was unfairly terminated without warning, notice or hearing on allegations of stealing milk, and sought notice pay, pay for days worked, house allowance, underpayment, annual leave, severance pay, compensation, costs and a Certificate of Service. He testified that on the evening of 4th November 2014 he took the litre of milk customarily allowed to employees, but a new manager unaware of the policy treated it as theft. The respondent defended the dismissal as summary dismissal for gross misconduct, asserting the claimant was found with milk without authorisation, admitted taking it at a disciplinary hearing, and received his terminal dues of Ksh.13,003.00 plus a Certificate of Service. The respondent's security officer testified to the hearing and confession. The court held that the claimant's admitted possession of the employer's milk, without any proved policy or authorisation permitting its removal, justified summary dismissal. It found the sanction harsh - a warning or surcharge would have sufficed - but lawful, so notice pay and compensation were unavailable. The house allowance and underpayment claims failed as gross pay matched the Wage Orders, and severance pay was misplaced. The respondent's relied-on authority, Nicholas Otinyu Muruka v Equity Bank Limited, was distinguished as factually different. The claim was dismissed, with only the Certificate of Service to be issued if not collected, and each party bearing own costs.

Key legal issues

Whether summary dismissal for unauthorised possession of milk was justified

Holding

Yes - unauthorised possession of the employer's property justified summary dismissal, though the sanction was harsh

Reasoning

The claimant admitted possession of one litre of the respondent's milk. He alleged a policy permitting employees to take a litre but produced no policy or letter of approval; the burden lay on him to prove it. Without authorisation, the possession constituted unauthorised possession of the employer's property, and summary dismissal was lawful though harsh.

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Whether the claimant was denied a fair hearing

Holding

No - the respondent's evidence was that a disciplinary hearing was held at which the claimant admitted taking the milk

Reasoning

The security officer, Peter Monari, testified that a disciplinary hearing was held where the supervisor and a colleague were present and the claimant confessed. The claimant produced no notice to show cause or proof that no hearing occurred; his admission of the facts undermined the procedural unfairness claim.

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Entitlement to notice pay, compensation, severance pay, house allowance and underpayment

Holding

All refused - summary dismissal found lawful and terminal dues of Ksh.13,003.00 already paid

Reasoning

Notice pay and compensation are unavailable in a lawful summary dismissal. Gross pay was commensurate with the Wage Orders, defeating the house allowance and underpayment claims, and the respondent's schedule of Ksh.13,003.00 covered days worked, leave, overtime and house allowance. Severance pay was misplaced as it applies to redundancy, not dismissal for misconduct.

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Legal principles established

Where an employee relies on an alleged employer policy to justify possession of the employer's property, the burden lies on the employee to prove that policy
Summary dismissal is a lawful sanction for unauthorised possession of an employer's property amounting to theft, though a warning or surcharge would have sufficed

Court orders

1.The claim is dismissed
2.The respondent shall issue the claimant his Certificate of Service if not yet collected, in accordance with the applicable law
3.Each party to bear own costs

Authorities

Legislation

Employment ActWage Orders (gross pay and house allowance provisions)

Cases cited (1)

Nicholas Otinyu Muruka versus Equity Bank Limited
Cause No.25 of 2013

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Lihanda Ada Yohana v Kenya Nut Company Limited [2018] KEELC 4895 (KLR)", Case Analysis (2018). Cause No 415 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4895/eng@2018-12-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.