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ELRCPartially AllowedCause No. 58 of 2001· [2002] KEELRC 22 (KLR)

TRANSPORT & ALLIED WORKERS’ UNION v EXPRESS TRUCKING LTD [2002] KEELRC 22 (KLR)

High Court of Kenya (Industrial Court)
14 January 2002
1,281 words in judgment
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The bottom line

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Kenya's Industrial Court upheld a truck driver's dismissal for losing cargo, but still ordered the employer to pay him salary arrears, leave dues, notice pay and ex-gratia compensation.

What this practically means

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Executive summary

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This is an ex-parte industrial court award arising from a dispute referred by the Minister for Labour under Section 8 of the Trade Disputes Act, Cap. 234, concerning the dismissal of Alloys J.M. Kaleli, a heavy commercial driver employed by Express Trucking Ltd. The grievant was dismissed on 27th January 1998 for failing to account for the loss of 12 bales of blankets, 260 litres of diesel and compensation money totalling Kshs. 125,050 during a trip to Burundi. Following an investigation by Mr. L.K. Bii appointed under Section 7 of the Act, the Investigator found the dismissal justified due to the grievant's negligence and lack of diligence, but recommended payment of outstanding salary and pro-rata leave. The Union rejected the recommendation and claimed Kshs. 200,556 on the basis of a Kshs. 12,000 monthly salary. The court, disagreeing with the Investigator's finding that the salary was Kshs. 5,500, held that a long-distance driver could not fairly earn so little, but doubted the Union's claim of ten months' salary arrears. Holding the dismissal justified, the court nonetheless, in the interests of justice and equity, awarded Kshs. 56,657 comprising the outstanding salary balance of Kshs. 12,086, pro-rata leave of Kshs. 8,571, one month's salary in lieu of notice of Kshs. 12,000 and a two months' ex-gratia payment of Kshs. 24,000, rejecting all other demands for lack of proof. The award was dated and delivered at Nairobi on 14th January 2002, with both Members concurring.

Key legal issues

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01

Justification of the dismissal

Holding

The dismissal was justified; the grievant's negligence in failing to account for lost goods and his failure to co-operate in recording a statement warranted dismissal

Reasoning

The Investigator found the grievant, a seasoned driver, should have detected the theft of 12 bales of blankets in transit to Burundi, and his refusal to record a statement frustrated an insurance claim. The court adopted these findings, holding the management had a responsibility to prevent further liabilities from his continued employment.

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02

Correct monthly salary of the grievant

Holding

The court rejected the Investigator's finding of Kshs. 5,500 per month and accepted the Union's figure of Kshs. 12,000 per month as the basis of computation

Reasoning

The court held it implausible that a long-distance heavy commercial driver plying the Kenya–Burundi route would earn only Kshs. 5,500, but doubted the Union's claim of salary arrears over the 10-month period of service, leading to a tailored award.

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03

Quantum of terminal dues and compensation

Holding

The grievant was awarded Kshs. 56,657 made up of salary balance, pro-rata leave, one month's notice pay and two months' ex-gratia payment

Reasoning

Although dismissal was justified, the court in the interests of justice and equity awarded notice pay and a two-month ex-gratia payment for loss of employment, computed on the Kshs. 12,000 monthly salary, while rejecting the balance of the Union's Kshs. 200,556 demand for lack of proof.

p. 3

Legal principles established

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  • A driver entrusted with goods is responsible for losses arising from negligence and lack of diligence in inspecting and securing the cargo, justifying dismissal
  • An award may be granted in the interests of justice and equity even where dismissal is substantively justified, including notice pay and an ex-gratia payment for loss of employment
  • Demands not proved on the evidence must be rejected

Court orders

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  1. 1.The Company to pay the grievant Kshs. 56,657/= comprising outstanding salary balance of Kshs. 12,086, pro-rata leave of Kshs. 8,571, one month's salary in lieu of notice of Kshs. 12,000, and a two months' ex-gratia payment for loss of employment of Kshs. 24,000
  2. 2.All other demands rejected for lack of proof

Authorities

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Legislation

  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 8
  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 14(9)(e) and (f)
  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 4
  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 7
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya - reference by the Minister for Labour

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "TRANSPORT & ALLIED WORKERS’ UNION v EXPRESS TRUCKING LTD [2002] KEELRC 22 (KLR)", Case Analysis (2002). Cause No. 58 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/22/eng@2002-01-14

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