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ELRCPartially AllowedCause No 182 of 2013· [2015] KEELRC 1196 (KLR)

Francis Mugo Maina v Praying Mantis Limited [2015] KEELRC 1196 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
10 April 2015
RSRadido Stephen
1,494 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 who dismisses a worker for absconding still loses if it never gave the employee a hearing before dismissal.

What this practically means

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Executive summary

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The Claimant sued the Respondent seeking Kshs 98,240/- in terminal dues, alleging unjustified termination of his employment as a driver. The Respondent denied employing the Claimant and pleaded in the alternative that he absconded in mid-May 2006 after a shaving machine and hydraulic jack went missing. The Court framed four issues: defectiveness of the suit (treated as abandoned, as the Respondent never took it up), the existence of employment, the lawfulness of the termination, and entitlement to relief. On the documents and testimony, including the Respondent's pay sheet and Operation Control Chart and evidence from both sides' witnesses, the Court found that 'Francis Mugo Maina' and 'Franco Mugo Maina' in the Respondent's records referred to the same person and that the Claimant had been employed since 2001. On termination, even accepting the Respondent's extreme case of desertion, section 41 of the Employment Act, 2007 obliged it to hear the employee before summary dismissal, and it neither did so nor attempted a show cause letter; nor did it prove desertion under section 43. The termination was therefore without justifiable cause. On relief, the Court awarded one month's pay in lieu of notice (Kshs 3,200/-), finding no contractual basis for three months, and the full overtime claim of Kshs 61,440/-, noting the Respondent did not challenge the overtime testimony and taking judicial notice of shift practices in the private security sector. Claims for gratuity and leave allowance were dismissed for lack of evidential basis. Total award: Kshs 64,640/-, with costs assessed at Kshs 20,000/-.

Key legal issues

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01

Whether the Claimant was employed by the Respondent despite name discrepancy (Francis vs Franco)

Holding

Francis Mugo Maina and Franco Mugo Maina refer to the same person; the Claimant was an employee of the Respondent from 2001

Reasoning

The Claimant produced the Respondent's pay sheet and Operation Control Chart identifying his name, and explained that the Respondent recorded him as 'Franco' although his identity card reads 'Francis'. His witness confirmed his employment, and the Respondent's own witnesses conceded the person who testified was a driver in its records. The documentary and oral evidence together established employment.

p. 2
02

Whether the termination was without justifiable cause

Holding

The termination was without compliance with procedural fairness safeguards under section 41 of the Employment Act, 2007, and the Respondent failed to prove desertion under section 43

Reasoning

Even taking the Respondent's best case that the Claimant deserted, section 44 permits summary dismissal for absence but section 41 obligates a hearing before dismissal. The Respondent neither gave a hearing nor sent a show cause letter, and did not prove desertion as a valid and fair reason under section 43. The Court found procedural unfairness more probable.

p. 3
03

Whether the Claimant proved the overtime claim

Holding

The Court found the Claimant made a case for the overtime claimed

Reasoning

The Claimant testified he worked throughout the week from 6.00am to 6.00pm and the Respondent did not challenge this. The Court took judicial notice that private security sector employees ordinarily work two twelve-hour shifts and that employees do not ordinarily keep attendance or overtime records, justifying the award of the full claimed amount.

p. 4

Legal principles established

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  • Even where an employee deserts duty, the employer must give the employee a hearing before summary dismissal
  • The employer bears the burden of proving desertion as a valid and fair reason for dismissal

Court orders

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  1. 1.The Respondent to pay the Claimant one month wage in lieu of notice of Kshs 3,200/-
  2. 2.The Respondent to pay the Claimant overtime of Kshs 61,440/-
  3. 3.Total award of Kshs 64,640/-
  4. 4.Claims for gratuity and leave allowance dismissed
  5. 5.Claimant to have costs assessed at Kshs 20,000/-

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44
Jurisdiction invoked
Suit transferred from the High Court at Nakuru to this Court on 17 May 2013 pursuant to transfer of employment and labour relations jurisdiction

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, "Francis Mugo Maina v Praying Mantis Limited [2015] KEELRC 1196 (KLR)", Case Analysis (2015). Cause No 182 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1196/eng@2015-04-10

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