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ELRCDismissedNot stated in judgment· [2013] KEELRC 861 (KLR)

Edwine Otieno Okello v Nakumatt Holdings Ltd [2013] KEELRC 861 (KLR)

Industrial Court of Kenya
15 January 2013
NMNzioki wa Makau
2,975 words in judgment
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The bottom line

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Kenya's Industrial Court upheld Nakumatt's summary dismissal of an employee who could not explain a lost television, confirming fair disciplinary process protects employers.

What this practically means

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Executive summary

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The Claimant, a shop assistant employed by the Respondent from 6th September 2008, claimed unfair and unlawful dismissal, failure to pay contractual gratuity, salary, benefits, termination notice and leave allowance after his summary dismissal on 13th July 2011. The dismissal followed the loss of a plasma television worth Kshs. 69,995 which the Claimant had sold and escorted to the lift on 21st June 2011 but which never reached the bulk section near the cashiers. The Respondent's Human Resource Officer testified that CCTV footage showed the Claimant entering the lift with the item but not emerging with it, that the white and blue receipt copies could not be traced, and that no television was tilled that day. The disciplinary committee, which the Claimant attended, recommended termination for theft of company property. The Claimant testified that security officers were responsible and had offered to pay for the television, but the matter was never reported to the police. The court held that the Claimant was the last person to handle the lost item and the proximate cause of the loss was his handling of it; the Respondent was justified in summarily dismissing him after investigations and an inquiry in which he was accorded an opportunity to explain himself. The dismissal was therefore not unfair under Section 45 of the Employment Act. On gratuity, the court gave guidance that it is governed by Section 35 of the Employment Act. The claim failed in its entirety and was dismissed, with each party bearing their own costs. Judgment delivered on 15th January 2013 by Nzioki wa Makau J.

Key legal issues

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01

Whether the summary dismissal was justified and fair

Holding

The summary dismissal was justified; the Claimant was the last staff member to handle the lost television and failed to explain its disappearance

Reasoning

The Claimant handled the sale of the plasma television, prepared the triplicate receipt and escorted the item to the lift. The item was never seen at the bulk section, the white and blue copies could not be traced, and no television was tilled that day. CCTV did not show the item at the bulk section. The disciplinary committee gave the Claimant an opportunity to be heard. The court held the proximate cause of the loss was the Claimant's handling of the item and the dismissal complied with the contract and natural justice.

p. 5
02

Whether procedural fairness (natural justice) was accorded

Holding

Natural justice was observed; the Claimant was given an opportunity to appear and explain the loss but failed to satisfy the Respondent

Reasoning

The Claimant attended a disciplinary meeting on 11th July 2011 where he owned up to writing the receipt but could not explain how the item disappeared. The committee heard security officers and management. The court was satisfied the principles of natural justice were adhered to before dismissal in terms of the contract.

p. 5

Legal principles established

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  • Gratuity is governed by Section 35 of the Employment Act

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act 2007Section 45
  • Employment Act 2007Section 35
  • Industrial Court ActSection 33
Jurisdiction invoked
Industrial Court Act, Section 33 (first-instance jurisdiction of the Industrial Court)

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, "Edwine Otieno Okello v Nakumatt Holdings Ltd [2013] KEELRC 861 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/861/eng@2013-01-15

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