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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 832 (KLR)

Nahason Njogu Njoroge v Murata Co-Operative Savings And Credit Society Limited [2015] KEELRC 832 (KLR)

Employment and Labour Relations Court
3 July 2015
BOBYRAM ONGAYA
1,758 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, an internal auditor employed by the respondent in 2007 and based at Murang'a head office, was transferred to Thika branch in November 2013 to handle inter-branch reconciliations. After appearing before the board on 7.02.2014 to discuss reconciliation matters, he was suspended on half pay by letter dated 8.02.2014 over failure to advise the board on reconciliations and safety of members' funds. He protested by letter dated 12.02.2014, denying the alleged admissions. On 24.05.2014 his employment was terminated. He sued seeking a declaration that the termination was unlawful, damages, and Kshs. 3,191,900.34 in benefits comprising service gratuity, underpayment, withheld pay and school fees refund. The respondent denied the claim and counterclaimed Kshs. 772,773.00 in unpaid staff and staff scholar loans. The court held the board meeting invitation was not a section 41 disciplinary hearing; the collective agreement's requirement of a warning before suspension was breached; and no hearing preceded termination, rendering it unfair. The declaration was granted and 12 months' gross salary (Kshs. 1,105,104.00) awarded under section 49(1)(c). The withheld pay, underpayment, gratuity (abandoned) and school fees refund claims failed. The counterclaim of Kshs. 790,080.00 (as pleaded in the claim) succeeded and was set off, leaving the respondent to pay Kshs. 315,024.00, with each party bearing own costs.

Key legal issues

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01

Whether the invitation to the board meeting amounted to a disciplinary hearing under section 41 of the Employment Act

Holding

It was an invitation to discuss performance generally, not a disciplinary hearing

Reasoning

The court considered the letter inviting the claimant to the board meeting and found it did not notify the claimant that termination on account of misconduct or poor performance was desired, nor that he was to attend a hearing in that regard. It therefore could not satisfy section 41 requirements.

p. 1
02

Whether the termination was unfair

Holding

Yes - no warning prior to suspension as required by clause 8 of the collective agreement, and no hearing after suspension before termination

Reasoning

RW admitted the claimant was entitled to a warning prior to suspension under clause 8 of the collective agreement, which was not given. There was also no evidence of a hearing between suspension and termination, contrary to section 41 of the Employment Act. The termination was therefore procedurally unfair.

p. 2
03

Entitlement to remedies

Holding

12 months' gross salary awarded under section 49(1)(c); other heads refused

Reasoning

The claimant served since 2007, held high professional qualifications, rendered dedicated service and did not contribute to his termination. The court found 12 months' gross salary under section 49(1)(c) would meet the ends of justice, awarding Kshs. 1,105,104.00.

p. 2

Legal principles established

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  • An employee is entitled to a hearing as envisaged in section 41 of the Employment Act before termination, and breach of collective agreement procedures on suspension renders termination unfair

Court orders

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  1. 1.The respondent's counterclaim is granted with the amount found due to the respondent set off against the amount found due to the claimant
  2. 2.The respondent to pay the claimant Kshs. 315,024.00 by 1.09.2015 failing interest at court rates from the date of judgment till full payment
  3. 3.Each party shall bear own costs of the suit

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 49(1)(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 41 and 49 applied)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nahason Njogu Njoroge v Murata Co-Operative Savings And Credit Society Limited [2015] KEELRC 832 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/832/eng@2015-07-03

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