Terry Maina v East African Portland Cement Company Limited [2016] KEELRC 104 (KLR)

The plaintiff's role was limited to identifying houses for staff; the respondent produced no evidence to discredit this. She was not summoned before the Human Resources Committee to answer the charges, contrary to Section 41 of the Employment Act and the company's own disciplinary procedure requiring that charges be read to the employee and adequate opportunity to defend himself be given. The second charge concerning Government Housing Policy was untenable since the respondent was an autonomous corporate entity with its own housing policy.

The plaintiff was not paid salary for May, June and July 2003 despite termination dating 1st August 2003. She was removed from company housing during the disciplinary process despite the contract providing housing or payment in lieu. School fees benefits and accrued leave entitlements were unpaid at termination. Summary dismissal entitled her to payment in lieu of three months' notice under the contract.

RW1 testified the plaintiff owed car loan, other loans and salary advances, but no counterclaim was filed, no statement of account was produced, the monies had been written off as bad debt, and the company's earlier claim against the plaintiff was struck out and not appealed. The defendant's witness had no personal knowledge and the plaintiff's personal file had gone missing.

No offence was properly proved against the plaintiff and she did not contribute to the termination. She was prematurely removed from company housing, paid no terminal benefits, not even salary for days worked, and lost a good job without notice in a cruel manner that violated her dignity and that of her children. The court considered the maximum compensation under Section 49(1)(c) appropriate.