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ELRCPartially AllowedCause Number 1307 of 2011· [2014] KEELRC 627 (KLR)

Joseph Kioko Mbithi v African Auto Suppliers Limited [2014] KEELRC 627 (KLR)

Industrial Court at Nairobi
18 February 2014
2,175 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a General Labourer employed by the Respondent from November 1997, was summarily dismissed on 5th May 2010 after the Respondent's owner, Mr. Kantilal, allegedly recovered a stolen motor vehicle seal concealed under his clothes. He claimed unfair and unlawful termination, seeking severance pay, terminal benefits, three months' notice pay, unpaid leave, salary underpayments, transport allowance and gratuity totaling Kshs. 186,000, plus general damages, costs and interest. The Respondent asserted the dismissal was lawful, following the Claimant's written admission of gross misconduct. The Court found the Respondent's three witnesses consistent, corroborative and credible, and accepted that the Claimant stole or was caught with the seal, making the dismissal substantively justified under Section 44(4)(g) of the Employment Act 2007. However, the Court found considerable doubt whether the Respondent implemented the minimum statutory procedure under Sections 41 and 45, as the Claimant was never formally charged or given a chance to defend himself at a disciplinary forum in the company of a colleague or trade union representative. Termination was therefore unfair on account of procedure, and the Claimant was awarded minimal compensation of one month's salary (Kshs. 11,500). All other prayers - severance pay, service pay, notice pay, terminal benefits, transport allowance, underpayments and gratuity - were rejected for lack of contractual, statutory or evidential support. The judgment was dated and delivered at Nairobi on 18th February 2014.

Key legal issues

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01

Whether the summary dismissal was substantively justified

Holding

Yes - termination was based on valid ground under Section 44(4)(g) of the Employment Act 2007, as the Claimant committed or was reasonably suspected of committing a criminal offence against his Employer's property

Reasoning

The Court believed the consistent, corroborative and credible evidence of the three Respondent witnesses: the Claimant was found with a stolen motor vehicle seal concealed under his clothes, and recorded an admission statement. The Court did not see the discrepancy in the dating of the admission statement as raising significant doubt on its veracity.

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02

Whether the termination procedure was fair

Holding

No - the Respondent failed to observe the minimum statutory termination procedure under Sections 41 and 45 of the Employment Act 2007, entitling the Claimant to minimal compensation of one month's salary

Reasoning

The Claimant was never formally charged, never taken to a disciplinary forum, and had no opportunity to explain or defend himself, with a colleague or trade union representative present. Instead the Employer extracted the seal, roughed him up, made him sign a confession and terminated the contract. This breached the basic termination standards in Section 41 of the Act.

p. 4
03

Whether the monetary claims for severance pay, terminal benefits, notice pay, transport allowance, underpayments and gratuity were established

Holding

No - all were rejected for want of contractual, statutory or evidential support

Reasoning

The Claimant was not retrenched, so severance under Section 40 was unavailable; service pay under Section 35 did not apply since termination was under other provisions; notice pay, transport allowance, underpayment and gratuity lacked contractual or legal backing, and the Kshs. 186,000 figure was never broken down under specific items.

p. 4

Legal principles established

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  • An employer may have valid substantive grounds for dismissal but termination remains unfair where the statutory fair procedure under Section 41 is not observed
  • An employee caught stealing must be formally charged and allowed to defend himself at a disciplinary forum, with a colleague or trade union representative present, and given the opportunity to respond to the specific charges
  • Where only procedure is violated, compensation should be minimal

Court orders

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  1. 1.Declaration that termination was unfair on account of procedure
  2. 2.The Respondent shall pay to the Claimant 1 month salary in compensation at Kshs. 11,500
  3. 3.Other prayers are rejected
Jurisdiction invoked
Jurisdiction over an employment dispute under the Industrial Court's jurisdiction (Employment and Labour Relations), Cause Number 1307 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Kioko Mbithi v African Auto Suppliers Limited [2014] KEELRC 627 (KLR)", Case Analysis (2014). Cause Number 1307 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/627/eng@2014-02-18

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