Joseph Gitonga Ndegwa v Rift Valley Sports Club [2015] KEELRC 84 (KLR)
The bottom line
#Kenya's High Court ruled a worker's dismissal unjustified because the employer could not prove the misconduct, but denied his gratuity claim.
What this practically means
#Executive summary
#Key legal issues
#Right to a hearing before dismissal under the repealed Employment Act (cap. 226)
The court endorsed the position that natural justice had no application to a simple contract of employment unless contractually provided; a right to a hearing is now statutory under Article 41 of the Constitution, but did not apply at the material time.
The court reviewed the authorities, noting inconsistency in earlier decisions. It adopted the Court of Appeal's holding in Rift Valley Textiles Ltd v Edward Onyango Oganda, in tandem with the common law position in Malloch v Aberdeen Corporation, that an employer giving contractual notice need not hear the servant before dismissal.
Whether the summary dismissal was justifiable
The dismissal was not justifiable; the trial court failed to evaluate the facts leading to the dismissal, and the respondent did not establish that the Appellant received the member's wife's payment.
The respondent alleged gross misconduct over a payment of Kshs 2,549 by a member's wife that never reached the cashier. Yet the respondent's witness never identified the Appellant as the recipient; the investigations report showed the money was paid to the receptionist, who gave change. The trial court jumbled the facts with the remedies of reinstatement and gratuity and did not address whether the dismissal was justified.
Entitlement to gratuity
The claim failed because the Appellant did not prove he was administrative staff entitled to gratuity under clause 13 of the Terms and Conditions of Service.
Gratuity requires a contractual or statutory basis. The Appellant founded his claim on contract, relying on clause 13 which entitled administrative staff to gratuity, but he did not prove membership of that class, so the head of claim was rightfully rejected by the trial court.
Legal principles established
#- Under the repealed Employment Act (cap. 226) and at common law, the rules of natural justice did not apply to a simple contract of employment unless specifically provided for in the contract; where a notice period is provided, an employer need not assign a reason or hear the employee before terminating on notice.
- It is for the employer who dismisses an employee to justify the lawfulness of the dismissal with facts.
- Gratuity must have either a contractual or statutory basis to be payable.
Court orders
#- 1.The lower Court's dismissal of the Appellant's case is overturned and substituted with a finding that the summary dismissal was unjustified
- 2.The Appellant is awarded 2 months wages in lieu of notice assessed as Kshs 16,474/-
- 3.The Appellant to have costs of the lower Court and of the appeal
- On appeal from
- Nakuru Chief Magistrates Court
- not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction of the High Court over appeals from the Chief Magistrates Court (appeal lodged 22 February 2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Gitonga Ndegwa v Rift Valley Sports Club [2015] KEELRC 84 (KLR)", Case Analysis (2015). Appeal No 1 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/84/eng@2015-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.