David Owino Oduor v Pancras Kuria Nyoike t/a Mijengo Investments [2015] KEELRC 321 (KLR)
The bottom line
#A Kenyan court confirmed an employer can dismiss a worker for misusing company materials, but still had to pay years of wage underpayments.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was unfair
The dismissal was substantively justified; procedural fairness was substantially met and the employer proved gross misconduct/breach of the implied term of trust and confidence
Although the Claimant received no written notice under section 35, the employer could dismiss without notice for gross misconduct under section 44. The Claimant was called and allowed to make representations. Unchallenged evidence showed he agreed to make a private mahogany bed for the Assistant Manager using the Respondent's materials, breaching trust and confidence, entitling the Respondent to dismiss him.
Whether the cause of action was compromised at conciliation
The heads settled in the 15 October 2013 Payment Agreement before the Labour Officer cannot be re-agitated in court
The parties conciliated before the Labour Officer and a Payment Agreement/Settlement was signed on 15 October 2013 covering unlawful dismissal, notice pay, wages, leave, public holidays and other legal dues; the Claimant was paid Kshs 7,965/-. The Claimant is estopped from re-litigating those items.
Whether the Claimant was underpaid
Yes; the Court found underpayment per Legal Notices Nos 38 of 2006, 70 of 2009, 98 of 2010 and 64 of 2011 and awarded the full claimed sum as unchallenged
Both parties agreed the rates of pay at the material times and the Court found underpayment. The Respondent did not challenge the figures or computations, so the Court found for the Claimant as prayed. Underpayment was not among the items settled at conciliation.
Whether the claim was defective
No determination; the defect was not particularised
The Respondent's pleadings suggested the claim was defective but the line was not advanced in submissions and no particulars of the defects were disclosed, so the Court left the issue.
Legal principles established
#- A valid dismissal must be both procedurally fair and founded on valid and fair reasons which the employer must prove
- Procedural fairness does not require an employer to hold a mini-court; each case depends on the circumstances of the employment relationship
- In summary dismissal the employer must prove gross misconduct or breach of a fundamental obligation
- Use of the employer's materials for a private job breaches the implied term of trust and confidence and justifies dismissal
- A settlement agreement signed at conciliation before the Labour Officer estops the employee from re-litigating settled heads of claim
Court orders
#- 1.The Memorandum of Claim filed on 13 March 2014 is dismissed on account that the cause of action was compromised save for an award of Kshs 68,084/- on account of underpayments
- 2.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Owino Oduor v Pancras Kuria Nyoike t/a Mijengo Investments [2015] KEELRC 321 (KLR)", Case Analysis (2015). Memorandum of Claim filed 13 March 2014 (ELRC Cause, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/321/eng@2015-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.