Katembe Kirongo Mtumwa & another v Steel Makers Limited [2015] KEELRC 98 (KLR)
The bottom line
#Even when an employee is caught stealing, Kenyan employers must still hold a proper hearing and pay all earned terminal benefits.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for summary dismissal
There was valid reason - the Claimants were found peeling copper wires they were not assigned to peel, in circumstances evidencing attempted theft
Mtumwa was found alone in a store where he was not ordinarily assigned, peeling cables, a role belonging to the foundry department. Prasanna had not requested peeling. Wafula gave inconsistent explanations for sending Mtumwa to the store. The inconsistency strengthened the Respondent's evidence that the Claimants were attempting to steal copper wires. Mtumwa's confession that Wafula instructed him was consistently given by Respondent witnesses and accepted.
Procedural fairness under Section 41 of the Employment Act
Dismissal was procedurally unfair - no charges were leveled and no disciplinary hearing was held between suspension and dismissal
Suspension, investigations and engagement of the Shop Steward did not satisfy Section 41. No charges were leveled, the Claimants were not called to answer charges or to a hearing accompanied by workmates or union representatives of their choice. Between suspension on 17th August 2012 and dismissal on 25th August 2012 there was no hearing of any shade. The Court awarded minimal compensation of 3 months' gross salary each, weighed against the finding of substantive justification.
Terminal benefits of summarily dismissed employees and the CBA clause denying them
Terminal benefits are payable regardless of the manner of termination; the CBA clause denying terminal benefits on summary dismissal is unenforceable
Section 18para 4 creates minimum standards that parties cannot contract out of, whether individually or collectively. Clause 24 of the CBA, denying terminal benefits to summarily dismissed Employees, is inconsistent with Section 18para 4 and unenforceable. Terminal benefits are earned; an Employer may deduct proven losses under Section 19 but may not decline paying terminal dues altogether. The CBA entitlements to annual leave, notice and gratuity were noted, notice pay being disallowed for gross misconduct.
Legal principles established
#- Section 18para 4 of the Employment Act 2007 requires Employers to pay summarily dismissed Employees all moneys, allowances and benefits due up to the date of dismissal; parties cannot contract out of this minimum standard
- Investigation alone is not sufficient; the employer must hold a disciplinary hearing in the mode prescribed under Section 41 of the Employment Act before dismissal
- Employees need not request a hearing; the law demands they are heard without having to make a request
Court orders
#- 1.Declaration that summary dismissal was based on valid reason but procedurally flawed
- 2.Katembe Kirongo Mtumwa to be paid Kshs. 43,875 as 3 months' gross salary for unfair termination; Kshs. 14,062 as salary for 25 days worked in August 2012; Kshs. 14,625 as 26 days annual leave pay for 2011/2012; and gratuity of Kshs. 153,000 at 16 days' salary for 17 completed years - total Kshs. 255,562
- 3.Stephen Wafula to be paid Kshs. 72,165 as 3 months' gross salary for unfair termination; Kshs. 23,129 as salary for 25 days worked in August 2012; Kshs. 24,055 as 26 days annual leave pay for 2011/2012; and gratuity of Kshs. 281,258 at 16 days' salary for 19 completed years - total Kshs. 400,607
- 4.The Claimants to be issued their respective Certificates of Service
- 5.Parties to meet their own costs of the Claim
- Jurisdiction invoked
- Industrial Court [Procedure] Rules 2010, Rule 27[1][a]; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katembe Kirongo Mtumwa & another v Steel Makers Limited [2015] KEELRC 98 (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/2015/98/eng@2015-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.