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ELRCPartially AllowedCause No. 1463 of 2013· [2015] KEELRC 228 (KLR)

Edward Mukala Agumonyo v Express Connections Limited [2015] KEELRC 228 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
14 October 2015
MMM. Mbaru
1,735 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fired a driver over suspected fuel theft without written notice or reasons was ordered to pay compensation and all terminal dues.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from August 2007 as a driver earning a monthly salary later increased to Kshs.17,759.00, claimed unfair summary termination and non-payment of terminal dues. His evidence was that in June 2013 the Respondent's management raised concerns over his vehicle's high fuel consumption; a mechanic found the vehicle was old and recommended replacement, but the Claimant was nonetheless told at midnight that there was no longer work for him and was chased away without notice, reasons, a hearing or payment of his dues. The Respondent was served but never entered appearance or filed a defence; when its counsel appeared on the judgment date seeking to file a defence out of time, no formal application followed. The court held that termination under section 35 of the Employment Act must be in writing so that an employee knows the reasons and can challenge them, and that suspicion of wrongdoing regarding missing fuel had to be properly followed up; in the absence of written notice, the termination was unprocedural and unfair contrary to sections 41 and 43. Notice pay was computed from the pay slips as basic pay plus housing allowance, and salary for May 2013 was awarded. Leave pay was declined because the 8 days off per month and paid overtime already compensated leave. Service pay for 4 years was awarded because the Respondent deducted NSSF dues but never remitted them. Compensation of 6 months' pay was granted. Judgment was entered for the Claimant with costs; the Respondent took no part in the proceedings.

Key legal issues

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01

Procedural fairness of summary dismissal

Holding

The termination without written notice or reasons, contrary to sections 41 and 43 of the Employment Act, was unprocedural and unfair

Reasoning

The Respondent suspected the Claimant of siphoning fuel but produced no evidence, gave no written notice of termination and offered no reasons. Under sections 35, 41, 43 and 45 of the Employment Act, termination must be in writing with reasons, and alleged wrongdoing must be properly followed up with a hearing. In the absence of written notice, the termination cannot be justified and is unfair.

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02

Respondent's failure to defend the claim

Holding

The Respondent's non-appearance and failure to file a defence despite service means it is not keen to defend the claim

Reasoning

The Respondent was served, confirmed by affidavit of service, but never entered appearance or filed a defence. Even when its counsel appeared on the judgment date seeking to file a defence out of time, no formal application was made. The court took this as indicating the Respondent was not keen to defend the claim, and proceeded on the Claimant's uncontroverted evidence.

p. 3
03

Entitlement to service pay

Holding

Service pay for 4 full years is due because the Respondent deducted NSSF dues but never remitted them

Reasoning

Service pay accrues where statutory deductions are not made, or where made they are not remitted. The NSSF statement was staggered and indicated the Respondent never made the requisite submissions, attracting a heavy penalty. The Claimant was therefore awarded service pay for the period from 2nd April 2009 to 6th June 2013.

p. 3

Legal principles established

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  • Where there is a written contract of employment, termination under section 35 of the Employment Act must be in writing so that the employee knows the reasons for termination
  • Suspicions of employee wrongdoing must be properly followed up and the employee given reasons; absent written notice, termination is unprocedural and unfair
  • Service pay is due where statutory deductions are made but not remitted to the relevant bodies

Court orders

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  1. 1.Declaration that the termination was procedurally unfair
  2. 2.Compensation awarded at Kshs.100,386.00
  3. 3.Notice pay Kshs.16,371.00
  4. 4.Salary for May 2013 Kshs.16,371.00
  5. 5.Service pay Kshs.34,462.00
  6. 6.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsection 35
  • Employment Actsections 41, 43 and 47
  • Employment Actsection 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and terminal dues claims

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, "Edward Mukala Agumonyo v Express Connections Limited [2015] KEELRC 228 (KLR)", Case Analysis (2015). Cause No. 1463 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/228/eng@2015-10-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.