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ELRCPartially AllowedAppeal No 1 of 2015· [2015] KEELRC 84 (KLR)

Joseph Gitonga Ndegwa v Rift Valley Sports Club [2015] KEELRC 84 (KLR)

High Court of Kenya
17 December 2015
1,548 words in judgment
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The bottom line

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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

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Executive summary

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The Appellant, a former employee of Rift Valley Sports Club, sued for unfair dismissal before the Nakuru Chief Magistrates Court; his claim was dismissed on 22 January 2010 for failure to prove his case on a balance of probabilities. He appealed to the High Court at Nakuru. On appeal, three issues were canvassed: whether the trial magistrate disregarded the Appellant's rights under section 17 of the repealed Employment Act (Cap. 226), whether the dismissal was unlawful, and whether the Appellant was entitled to gratuity. Radido J held that under the repealed Act and the common law, natural justice did not apply to a simple contract of employment absent specific contractual provision, adopting the Court of Appeal's decision in Rift Valley Textiles Ltd v Edward Onyango Oganda and Malloch v Aberdeen Corporation. However, on the facts, the respondent, having dismissed the Appellant for alleged gross misconduct over a member's payment of Kshs 2,549, failed to establish that the Appellant received the money; the investigations report showed payment was made to the receptionist. The trial court erred by failing to evaluate the facts leading to the dismissal. The summary dismissal was found unjustified, and the Appellant should have been given notice. The court overturned the dismissal of the suit, awarded the Appellant two months' wages in lieu of notice assessed at Kshs 16,474, and granted him costs of the lower court and of the appeal. The claim for gratuity failed, as the Appellant did not prove he was administrative staff entitled to gratuity under clause 13 of the Terms and Conditions of Service.

Key legal issues

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01

Right to a hearing before dismissal under the repealed Employment Act (cap. 226)

Holding

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.

Reasoning

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.

p. 2
02

Whether the summary dismissal was justifiable

Holding

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.

Reasoning

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.

p. 3
03

Entitlement to gratuity

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The Appellant is awarded 2 months wages in lieu of notice assessed as Kshs 16,474/-
  3. 3.The Appellant to have costs of the lower Court and of the appeal

Authorities

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Legislation

  • Employment Act, Cap. 226 (repealed)section 17
  • Employment Act, 2007null
  • Constitution of Kenya, 2010Article 41

Cases cited (3)

  • Michie Gitau v NSSF Board of Trustees, Nairobi High Court Civil Case No. 3264 of 1993
  • Rift Valley Textiles Ltd v Edward Onyango Oganda, Nakuru Civil Appeal No. 27 of 1992
  • Malloch v Aberdeen Corporation [1971] 1 W.L.R. 1578
    [1971] 1 W.L.R. 1578
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

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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, "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.