Katembe Kirongo Mtumwa & another v Steel Makers Limited [2015] KEELRC 6 (KLR)
The bottom line
#Kenya's Industrial Court ruled employers can fire for theft, but skipping a disciplinary hearing still makes the dismissal unfair — and terminal benefits must be paid.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for summary dismissal
There was a valid reason for the summary dismissal - attempted theft of copper wires
Mtumwa was found peeling wires in a store where he was not assigned; peeling was the foundry department's role. Wafula's inconsistent explanations of why he sent Mtumwa to the subsidiary store persuaded the Court the two were up to no good. Mtumwa's confession that Wafula instructed him to peel and sell the wires because Wafula was broke was consistently given by the Respondent's witnesses and accepted as strong and credible evidence.
Procedural fairness under Section 41 of the Employment Act
The dismissal was procedurally flawed for want of a disciplinary hearing
Although the Claimants were suspended and investigations conducted with the shop steward engaged, no disciplinary hearing was held. No charges were levelled and the Claimants were not called to answer them, accompanied by workmates or trade union representatives. Investigation is not sufficient to satisfy Section 41; between suspension and dismissal there was no hearing of any shade.
Terminal benefits of summarily dismissed employees
The CBA clause denying terminal benefits on summary dismissal was unenforceable as inconsistent with Section 18(4) of the Employment Act
Terminal benefits are earned and payable regardless of the manner of termination. Clause 24 of the CBA, denying all terminal benefits to summarily dismissed employees, falls below the statutory minimum standard in Section 18(4). Any loss caused by the employee can be deducted from terminal dues under Section 19 rather than denying payment altogether. The CBA-granted leave, gratuity and notice benefits were therefore awarded, except notice pay which is unavailable on gross misconduct.
Legal principles established
#- A valid reason for summary dismissal does not excuse the employer from complying with the procedural fairness requirements of Section 41 of the Employment Act, 2007; an employee must be heard without having to request a hearing.
- Section 18(4) of the Employment Act, 2007 obliges employers to pay summarily dismissed employees all moneys, allowances and benefits due up to the date of dismissal; contractual or CBA clauses denying terminal benefits to summarily dismissed employees are void as inconsistent with statutory minimum standards.
- Where a summarily dismissed employee occasions the employer a loss, the remedy is deduction from terminal benefits under Section 19 of the Employment Act, not outright denial of terminal dues.
- Employees summarily dismissed for gross misconduct are not entitled to notice of termination or pay in lieu of notice.
Court orders
#- 1.Declaration that summary dismissal was based on valid reason but procedurally flawed
- 2.Katembe Kirongo Mtumwa to be paid by the Respondent: 3 months' gross salary for unfair termination at Kshs. 43,875; salary of Kshs. 14,062 for 25 days worked in August 2012; 26 days' annual leave pay for 2011/2012 at Kshs. 14,625; and gratuity at 16 days' salary for every completed year of service (17 years) at Kshs. 153,000 - total Kshs. 255,562
- 3.Stephen Wafula to be paid by the Respondent: 3 months' gross salary for unfair termination at Kshs. 72,165; salary of Kshs. 23,129 for 25 days worked in August 2012; 26 days' annual leave pay for 2011/2012 at Kshs. 24,055; and gratuity at 16 days' salary for every completed year of service (19 years) at Kshs. 281,258 - total Kshs. 400,607
- 4.The Claimants to be issued their respective Certificates of Service
- 5.Other orders sought in the form of declarations rejected
- 6.Each party to bear their own costs of the Claim
- Jurisdiction invoked
- Industrial Court (now Employment and Labour Relations Court) jurisdiction under Section 12 of the Employment and Labour Relations Court Act; Award promulgated under Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katembe Kirongo Mtumwa & another v Steel Makers Limited [2015] KEELRC 6 (KLR)", Case Analysis (2015). Cause Number 76 of 2012 (Consolidated with Cause Number 428 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/6/eng@2015-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.