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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 983 (KLR)

Laban Mungai v Bordar Limited [2015] KEELRC 983 (KLR)

Employment and Labour Relations Court
16 April 2015
NMNzioki Wa Makau
606 words in judgment
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The bottom line

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A Kenyan court ruled that dismissing an employee over unproven theft allegations, without notice or a hearing, was unfair and awarded compensation.

What this practically means

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Executive summary

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The Claimant, employed as a Warehouse Clerk on 6th March 2014 at a monthly salary of Ksh. 16,000/- plus a Ksh. 2,000/- allowance, was accused on 17th May 2014 of responsibility for lost cartons and verbally dismissed on 16th June 2014. The Respondent did not enter appearance or file a defence despite service, and the cause proceeded as an undefended claim after default judgment was entered on 14th January 2015. The Claimant testified that he was denied access to CCTV footage, denied a meeting with the General Manager, and told not to return to work; he was never reported to the police and did not receive pay for May 2014. The court held that the dismissal was unprocedural: the allegations against the Claimant were unsubstantiated, and he could not be vicariously liable for a theft by another person absent proof of involvement. The dismissal was therefore unfair in terms of section 41 of the Employment Act. Exercising its discretion under section 49(1)(c) and taking into account the Respondent's callous, verbal and baseless manner of termination, the court awarded three months' salary as compensation. Judgment was entered for the Claimant for one month's salary in lieu of notice (Ksh. 16,000/-), Ksh. 8,000/- for days worked in May 2014, Ksh. 48,000/- as compensation, costs of the suit, interest on the pecuniary awards from the date of judgment until payment in full, and a certificate of service. Judgment was dated and delivered at Nairobi on 16th April 2015 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Procedural fairness in dismissal

Holding

The dismissal was unfair under section 41 of the Employment Act as the allegations were unsubstantiated and no hearing was accorded.

Reasoning

The court found the Claimant was unprocedurally dismissed. The contract allowed termination on one month's notice or pay in lieu, but the allegations of lost goods were unsubstantiated and the Claimant could not be vicariously liable absent proof of involvement. He was denied the CCTV footage and a hearing, so the verbal dismissal breached section 41.

p. 2
02

Compensation under section 49(1)(c)

Holding

The Claimant was awarded the equivalent of three months' salary as compensation, having regard to the Respondent's callous conduct.

Reasoning

Section 49(1)(c) gives the court discretion to award compensation, one consideration being the conduct of the parties. The verbal, unfounded manner of termination was found callous, justifying three months' salary as compensation.

p. 2

Legal principles established

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  • An employee cannot be vicariously liable for theft by another person unless involvement is shown, and unsubstantiated allegations render a dismissal unfair under section 41 of the Employment Act.

Court orders

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  1. 1.Ksh. 16,000/- being one month in lieu of notice
  2. 2.Ksh. 8,000/- being for the days worked in May 2014
  3. 3.Ksh. 48,000/- being 3 months compensation
  4. 4.Costs of the suit
  5. 5.Interest on (1), (2) and (3) from date of judgment till payment in full
  6. 6.Certificate of service

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 49(1)(c)
Jurisdiction invoked
Employment Act, sections 41 and 49(1)(c)

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, "Laban Mungai v Bordar Limited [2015] KEELRC 983 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/983/eng@2015-04-16

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