Johnstone Mwendwa v KUL Graphics Limited [2015] KEELRC 182 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot disguise a misconduct firing as redundancy without proof, and awarded the employee over Kshs.400,000 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's services was for justifiable reasons
There were no justifiable reasons for the termination; mere occurrence of theft in the area under the claimant's charge, without an internal investigation report or evidence placing blame on him, cannot justify termination.
The court noted the respondent's case rested solely on the fact that theft occurred where the claimant was in charge. No evidence was adduced on when the theft occurred or whether the claimant could have prevented it. No internal investigation report was produced showing blameworthiness, and the claimant had been exonerated by police while his junior was prosecuted.
Whether the termination on grounds of redundancy was lawful
The conversion of a termination for negligence/gross misconduct into redundancy was unprocedural and unlawful, since redundancy requires loss of employment through no fault of the employee.
Under section 2 of the Employment Act redundancy is loss of employment by involuntary means through no fault of the employee. The claimant's loss of employment was attributed to his own alleged fault (failure to prevent theft), so it could not be redundancy. The respondent also did not show the redundancy was sanctioned as alleged.
Whether the respondent was entitled to withhold Kshs.106,164 as the cost of the lost film plates
No; the amount was to be released to the claimant as there was no evidence assigning the value of the lost items to the amount retained, nor sufficient evidence the claimant was entirely to blame, and the items were insured.
The court found the retention unjustified because no valuation evidence linked the loss to the sum retained and blame on the claimant was not reasonably established. The respondent's statement that the items were insured further undermined the deduction.
Legal principles established
#- Redundancy is termination through no fault of the employee; where loss of employment results from the employee's own fault, it cannot be redundancy.
- An employer cannot convert a termination for gross misconduct into a redundancy; exoneration by police calls for independent internal evidence of blame before terminating an employee.
Court orders
#- 1.Payment of one month's pay in lieu of notice of Kshs.36,374.00
- 2.Payment of 10 months' salary as compensation for unfair dismissal of Kshs.363,740.00
- 3.Release to the claimant of the Kshs.106,164 retained on account of the lost film plates
- 4.Claimant to be paid the sum of Kshs.400,114/= on account of unlawful dismissal and unfair termination of services
- 5.Claimant to have costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007); specific provision not stated in judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnstone Mwendwa v KUL Graphics Limited [2015] KEELRC 182 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/182/eng@2015-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.