Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 10th March 2010, filed 5th May 2010 (number not stated in judgment)· [2013] KEELRC 103 (KLR)

Ben Opondo & 2 others v Viazi Limited [2013] KEELRC 103 (KLR)

Industrial Court of Kenya
24 July 2013
MOMaureen Onyango
1,755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer who caught employees stealing still had to pay them because it fired them without following the Employment Act's fair procedure.

What this practically means

#

Executive summary

#
Three Claimants, employed as waiters/cooks on diverse dates without statutory registrations, were summarily dismissed on 13th September 2009 on allegations that they conspired to steal and sell the Respondent's cooking fat, a matter reported to Central Police Station as OB75/2/12/09. They claimed unpaid September 2009 salary, three months' pay in lieu of notice, accumulated leave, service pay, leave allowance, compensation of up to 12 months' salary, exemplary damages, costs and interest. The Respondent admitted the employment and the dismissal, asserting it was for gross misconduct, that leave had been paid, that service pay was inapplicable, and that the dismissal was justified. The court framed two issues: whether the dismissal was fair and justified, and entitlement to the prayers. It held that although the Respondent had valid reason (theft), reporting the matter to the police did not satisfy sections 41, 43 and 45 of the Employment Act; the termination was therefore unprocedural and unfair. The court awarded each Claimant salary for days worked, one month's notice pay, accumulated leave (applying section 10(7) because the Respondent produced no records), service pay at 15 days per year (the Claimants not being NSSF-registered), and leave allowance per the letters of appointment. Compensation was reduced from the 12 months sought to two to three months' salary. Exemplary damages were refused, following Kenya Revenue Authority v Menginya Salim Murgani, and each party was ordered to bear its own costs because the Respondent had valid reason and only failed on procedure. Judgment totals: Kshs.79,336.80, Kshs.83,783.30 and Kshs.60,633.30 respectively.

Key legal issues

#
01

Whether the summary dismissal of the Claimants was fair and justified

Holding

The dismissal was for a valid reason (theft of cooking fat) but was unprocedural and therefore unfair because the Respondent did not comply with section 41 of the Employment Act; it only reported the matter to the police.

Reasoning

Section 44 of the Employment Act sets out grounds for summary dismissal but section 41 mandates that before termination on grounds of misconduct the employer must explain the reasons to the employee and hear and consider representations. The Respondent pleaded that its only action before dismissal was reporting the matter to Central Police Station. Criminal prosecution is not a recognised mode of terminating employment; hence the termination was unprocedural and unfair.

p. 3
02

Entitlement to unpaid salary, notice pay, leave, service pay and leave allowance

Holding

All awarded. Salary for days worked was admitted; notice pay flowed from unfair dismissal; leave was awarded because the Respondent produced no evidence of payment; service pay was payable since the employees were not registered with NSSF (section 35(5)-(6)).

Reasoning

The Respondent admitted non-payment of salary for days worked. Unfairly dismissed employees get one month's notice pay per their letters of appointment. The Respondent claimed it paid leave but adduced no evidence, triggering section 10(7). The parties agreed the Claimants were not registered with NSSF, so the section 35(6) exceptions to service pay did not apply.

p. 4
03

Quantum of compensation for unfair termination

Holding

Twelve months' salary sought was excessive; compensation of two to three months' salary awarded to each Claimant based on length of service and reasons for termination.

Reasoning

Having found the termination unfair, the court exercised discretion under the compensation provisions. Although the 1st Claimant sought 12 months' compensation, the court considered the short length of service and the valid underlying reason for dismissal and awarded reduced compensation of 2-3 months' salary.

p. 5
04

Whether exemplary damages are recoverable in an employment contract

Holding

No; exemplary damages are not payable in employment contracts and that head of claim was dismissed.

Reasoning

Relying on the Respondent's submission and the authority of Kenya Revenue Authority v Menginya Salim Murgani (2010) eKLR, the court held exemplary damages unavailable in employment contracts. The claim for exemplary damages was accordingly dismissed.

p. 5

Legal principles established

#
  • An employer must comply with the procedure in sections 41, 43 and 45 of the Employment Act before termination, and reporting the matter to police does not substitute for that procedure
  • Criminal prosecution is not a method of terminating employment under the Employment Act
  • Where an employer fails to produce employment records, it bears the duty to disprove the employee's allegations (section 10(7) of the Employment Act)
  • Exemplary damages are not payable in employment contracts

Court orders

#
  1. 1.Award of unpaid salary for days worked up to 13th September 2009: 1st Claimant Kshs.5,676.80; 2nd Claimant Kshs.4,333.30; 3rd Claimant Kshs.4,333.30
  2. 2.Award of one month's salary in lieu of notice: 1st Claimant Kshs.13,100; 2nd Claimant Kshs.10,000; 3rd Claimant Kshs.10,000
  3. 3.Award of accumulated annual leave: 1st Claimant Kshs.20,960; 2nd Claimant Kshs.16,000; 3rd Claimant Kshs.16,000
  4. 4.Award of service pay: 1st Claimant Kshs.13,100; 2nd Claimant Kshs.15,000; 3rd Claimant Kshs.10,000
  5. 5.Award of leave allowance: 1st Claimant Kshs.300; 2nd Claimant Kshs.450; 3rd Claimant Kshs.300
  6. 6.Award of compensation for unfair termination: 1st Claimant 2 months' salary Kshs.26,200; 2nd Claimant 3 months' salary Kshs.30,000; 3rd Claimant 2 months' salary Kshs.20,000
  7. 7.Dismissal of the claim for exemplary damages
  8. 8.Each party to bear its own costs
  9. 9.Total judgment: 1st Claimant Kshs.79,336.80; 2nd Claimant Kshs.83,783.30; 3rd Claimant Kshs.60,633.30

Authorities

#

Legislation

  • Employment Actsection 44
  • Employment Actsection 41(1) and (2)
  • Employment Actsection 42(1)
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 10(7)
  • Employment Actsection 35(5)
  • Employment Actsection 35(6)
  • Employment Actsection 40

Cases cited (1)

  • Kenya Revenue Authority v Menginya Salim Murgani
    (2010) eKLR
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act (specific provision not stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ben Opondo & 2 others v Viazi Limited [2013] KEELRC 103 (KLR)", Case Analysis (2013). Memorandum of Claim dated 10th March 2010, filed 5th May 2010 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/103/eng@2013-07-24

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