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ELRCDismissedNot stated in the judgment as provided (Cause of 6th March 2012)· [2015] KEELRC 1224 (KLR)

Kennedy Makokha Webuyele v East Africa Portland Cement Co. Limited [2015] KEELRC 1224 (KLR)

Industrial Court of Kenya
6 March 2015
NMNzioki wa Makau
2,465 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an employee's dismissal after he lost a company car, ruling the employer followed fair procedure and the loss was his own carelessness.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a sales representative and later Regional Sales Representative and Marketing Officer, sued for wrongful and unfair termination following the loss of company motor vehicle KAT 459X, stolen from his residence on the night of 4th November 2010. He was suspended, given a show-cause letter, subjected to disciplinary hearings, and summarily dismissed on 13th July 2011. His appeal reduced the summary dismissal to normal termination, and he was paid terminal dues. He sought reinstatement or, alternatively, maximum 12 months' compensation, bonus, general damages and costs, alleging procedural unfairness contrary to Section 41(1) of the Employment Act, breach of company rules, and discrimination because other staff who lost vehicles were not dismissed. The Respondent defended the termination as substantively and procedurally fair, relying on the unsecured parking of the vehicle and tampering with the tracking system. The Respondent's witnesses included a fleet management software engineer who testified the tracking system had been disconnected, and the head of HR & Administration. The Respondent also objected to reinstatement as contrary to Section 12(3)(viii) of the Industrial Court Act, citing David Getare Nyangau v Houseman General Contractors Ltd and Munga Omar Mnago v Teachers Service Commission. The Court found procedural fairness was accorded - the Claimant was heard and his appeal yielded a favourable outcome - that the discrimination claim lacked evidentiary support, and that the Claimant's carelessness in parking the company vehicle at an unfenced, unsecured premises furnished just cause under Section 44. The suit was dismissed with costs to the Respondent.

Key legal issues

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01

Procedural fairness of the termination

Holding

The termination was procedurally fair; the Claimant was heard, appealed, and the appeal reduced summary dismissal to normal termination.

Reasoning

The Claimant was issued a show-cause letter, responded to it, attended disciplinary hearings, appealed, and the appeal committee reduced the summary dismissal to normal termination. Terminal benefits were computed and paid. This satisfied the hearing contemplated by Section 41 of the Employment Act, so no procedural unfairness arose.

p. 4
02

Substantive justification for dismissal

Holding

The Claimant was dismissed for just cause - the loss of a company vehicle while in his care, parked at an unsecured, unfenced premises.

Reasoning

The vehicle was stolen while in the Claimant's possession. The tracking system was disconnected, and his residence was unfenced and unsecured contrary to the care required of company vehicles. Although not criminally charged, the Court found carelessness in handling the employer's asset, which under Section 44 provided grounds for termination. The insurer had compensated the loss.

p. 4
03

Discrimination claim

Holding

The discrimination claim failed for want of evidence.

Reasoning

Section 5 of the Employment Act outlaws discrimination, and the Claimant asserted that others who lost vehicles were not dismissed. However, no evidence was led to prove the alleged discrimination, so the assertion could not stand and the dismissal was found to be for just cause.

p. 4

Legal principles established

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  • Procedural fairness under Section 41 of the Employment Act is satisfied where an employee is given a show-cause letter, heard at a disciplinary hearing, and heard on appeal with a favourable outcome.
  • A claim of discrimination must be proved by evidence; the assertion alone is insufficient.

Court orders

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  1. 1.Dismissal of the Claimant's suit
  2. 2.Costs of the suit awarded to the Respondent

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 45
  • Employment ActSection 5
  • Employment ActSection 44
  • Employment ActSections 49(4)(b) and (d), and 50 (relied on by Respondent)
  • Industrial Court ActSection 12(3)(viii)

Cases cited (2)

  • David Getare Nyangau v Houseman General Contractors Ltd
    [2013] eKLR
  • Munga Omar Mnago v. Teachers Service Commission
    Cause No. 106 of 2012
Jurisdiction invoked
Employment and labour relations jurisdiction under the Industrial Court Act and Employment Act (specific enabling article not quoted in the judgment)

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, "Kennedy Makokha Webuyele v East Africa Portland Cement Co. Limited [2015] KEELRC 1224 (KLR)", Case Analysis (2015). Not stated in the judgment as provided (Cause of 6th March 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1224/eng@2015-03-06

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