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ELRCDismissedCause No. 464 of 2011· [2013] KEELRC 968 (KLR)

Willy Kosgei v Moi Teaching & Referral Hospital [2013] KEELRC 968 (KLR)

Industrial Court of Kenya
20 December 2013
DMD.K.N. Marete
1,219 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed a security guard's unfair dismissal claim because he had no proof of authorisation to be absent during a theft on his watch.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a senior security guard (confirmed on 3rd October 2007 after over a year on casual terms), was summarily dismissed by letter dated 20th November 2010, backdated to 25th October 2010, following a theft at the ECN offices in which materials worth about Ksh.313,400.00 were lost while he was on duty. He had earlier been served with a letter styled 'Interdiction: Show cause' dated 14th July 2010, charging him with failing to perform assigned work, committing a criminal offence against the employer's property and absenting himself from his place of work. He appeared before a disciplinary panel on 25th October 2010, was dismissed, and his appeal was reaffirmed. He sought declarations of wrongful and unfair dismissal, twelve months' and three months' salary in lieu of notice, service pay, reinstatement in the alternative, costs and interest. The respondent pleaded gross indiscipline and justified the dismissal. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. It found the claimant had not adduced evidence of authority to be absent on the night of the theft, that the disciplinary committee was properly constituted, and that the evidence showed carelessness and negligence on his part. The claim was dismissed in its entirety with costs to the respondent, the court holding that the dismissal was valid and the claimant entitled to no terminal dues.

Key legal issues

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01

Whether the termination of the claimant's employment was unlawful and wrongful

Holding

The termination was lawful; the evidence established carelessness and negligence by the claimant

Reasoning

A theft occurred at the ECN offices during the claimant's duty and materials worth about Ksh.313,400.00 were lost. The claimant failed to adduce evidence of authority to be away from work on the night of the theft. Witness evidence indicated a properly constituted disciplinary process and an appropriately addressed appeal. The court accepted the defence position that the claimant was lawfully terminated.

p. 3
02

Whether the claimant was entitled to the relief sought

Holding

The claimant was not entitled to any relief; the claim was dismissed in its entirety

Reasoning

Having found the termination lawful, the court held the claimant had no legitimate claim against the respondent and no entitlement to terminal dues. All heads of relief - declaration, notice pay, service pay and reinstatement - fell with the dismissal of the main claim.

p. 3

Legal principles established

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  • An employee who cannot adduce evidence of authority to be absent from work justifies disciplinary process and consequent dismissal

Court orders

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  1. 1.Dismissal of the claimant's claim
  2. 2.Costs of the cause awarded to the respondent
Jurisdiction invoked
Industrial Court of Kenya, Cause No. 464 of 2011 (employment and labour relations dispute)

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, "Willy Kosgei v Moi Teaching & Referral Hospital [2013] KEELRC 968 (KLR)", Case Analysis (2013). Cause No. 464 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/968/eng@2013-12-20

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