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 AllowedCause No 351 of 2013· [2013] KEELRC 947 (KLR)

Samuel G. Karitu v Crater Automobile (Nbi) Limited [2013] KEELRC 947 (KLR)

Industrial Court (Employment and Labour Relations Court)
20 December 2013
BOByram Ongaya
713 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan mechanic who stopped showing up after a workplace arrest lost his unfair dismissal claim because his story kept changing and he never returned to work.

What this practically means

#

Executive summary

#
The claimant, a mechanic employed by the respondent, was arrested on 13.08.2012 after items were reported stolen at the workplace. He claimed he was orally dismissed that afternoon by the managing director without notice or hearing, was subsequently acquitted in Chief Magistrate's Court criminal case No. 2864 of 2012 at Nakuru, and received no terminal dues. He sought notice pay, severance pay, six years' salary, and twelve months' compensation under section 49(c) of the Employment Act, 2007. The respondent, through its Administrative Assistant, admitted willingness to pay August 2012 salary, one month's notice pay and humanitarian service pay, totalling a net of Kshs.95,758.00 after tax, statutory deductions and a Kshs.8,000.00 salary advance, and contended that the claimant had absconded after his arrest rather than been dismissed. The court found the claimant's pleading of suspension inconsistent with his evidence of oral dismissal, preferred the respondent witness's account - including that the managing director was absent on the material day - and held that there was no dismissal or termination. The unfair termination claim therefore failed. The court accepted the respondent's offer of Kshs.95,758.00 as reasonable and just, ordered its payment by 24.12.2013 with interest at court rates if unpaid, awarded the claimant a certificate of service, and, because the offer had been made in the memorandum of response, limited costs to 50% of the costs of the suit payable by the respondent. Judgment was delivered at Nakuru on 20 December 2013 by Byram Ongaya, Judge.

Key legal issues

#
01

Whether the claimant's employment was terminated by the respondent on 13.08.2012

Holding

No dismissal or termination was proved; the claimant was arrested following suspected theft and never resumed duty, and the pleading of suspension contradicted the oral evidence of dismissal

Reasoning

The claimant pleaded suspension in paragraphs 5 and 6 of the memorandum of claim but testified to oral dismissal by the managing director. The respondent's witness (RW) testified that the managing director was absent on 13.08.2012 and that after the arrest he never saw the claimant again and presumed he had absconded. The court found RW's account credible and held there was no dismissal, so the unfair termination claim failed.

p. 2
02

What quantum of relief the claimant was entitled to

Holding

The respondent's offer of Kshs.95,758.00 (August 2012 salary, notice pay, humanitarian service pay, less tax, statutory deductions and Kshs.8,000.00 salary advance) was accepted as reasonable and just, together with a certificate of service

Reasoning

With no termination established, the statutory compensation claims collapsed. The court considered the offer made in the memorandum of response - covering August 2012 salary, one month's notice pay and humanitarian service pay less deductions - and found it reasonable and just. Because the offer had been made in the pleadings, the claimant was deprived of full costs and got only 50%.

p. 2

Legal principles established

#
  • Where an employee's pleading is inconsistent with his sworn evidence, the court may prefer the credible account of the respondent's witness
  • An employee arrested in the course of employment who does not resume duty may be treated as having abandoned employment rather than having been dismissed

Court orders

#
  1. 1.Respondent to pay the claimant Kshs.95,758.00 by 24.12.2013, failing which interest at court rates from the date of judgment
  2. 2.Respondent to pay 50% of the costs of the suit
  3. 3.Respondent to deliver to the claimant the certificate of service by 24.12.2013

Authorities

#

Legislation

  • Employment Act, 2007section 49(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; section 49 of the Employment Act, 2007 invoked

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel G. Karitu v Crater Automobile (Nbi) Limited [2013] KEELRC 947 (KLR)", Case Analysis (2013). Cause No 351 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/947/eng@2013-12-20

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