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ELRCPartially AllowedELRC 300/12 (formerly Nairobi HCCC No. 21 of 2010)· [2016] KEELRC 429 (KLR)

Florence Mugure Gitau v Musa Abdul t/a Trendy Touch & another [2016] KEELRC 429 (KLR)

Employment & Labour Relations Court
18 October 2016
HWHellen Wasilwa
1,264 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 could not prove an employee's alleged theft in court was ordered to pay Kshs. 826,000 for unfair dismissal.

What this practically means

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Executive summary

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Florence Mugure Gitau claimed she was employed by the Respondent in 1974 as a saleslady and that her services were unlawfully terminated on 27th September 2008 at a salary of Kshs. 14,000 per month. She sought notice pay, unpaid leave, severance pay for 34 years, house allowance and overtime, totaling Kshs. 4,611,707, plus costs and interest. The Respondent denied employing her from 1974, asserting he registered the business name Trendy Touch in April 2003 and took over some existing workers, and that she was summarily dismissed in September 2008 after being caught with stolen shoes. He further alleged she received Kshs. 245,000 in full and final settlement brokered through the Ministry of Labour. The court framed four issues: the duration of employment, validity of the reason for termination, procedural fairness, and remedies. It held that the Respondent did not exist in 1974 and the Claimant failed to link her earlier employers to him, fixing employment from 1st December 1996 on the basis of an NSSF printout. On termination, the Respondent bore the burden under Section 43 of the Employment Act, 2007 to prove the reason for dismissal; the theft allegation was unproved and was never raised before the Labour Officer or in response to the demand notice. No due process under Section 41 was followed, rendering the dismissal unfair despite its occurrence under the repealed Employment Act Cap 224. The court awarded Kshs. 826,000 - one month's notice pay, 20 years' service pay, house allowance at 15% for 240 months, and 12 months' compensation - plus costs and interest. Read in open court on 18th October 2016.

Key legal issues

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01

Whether the Claimant worked for the Respondent from 1974 to 2008

Holding

Employment with the Respondent is only established from 1st December 1996 as evidenced by the NSSF printout; the claim from 1974 cannot stand against the Respondent as sued

Reasoning

The Respondent registered the business name Trendy Touch on 13th April 2003, so he did not exist in 1974. Although the Claimant alleged the Respondent mutated over time changing names, she produced no evidence connecting her previous employer to the Respondent. NSSF records showed she was employed by Trendy Touch from December 1996, and the court therefore fixed employment with the Respondent from that date.

p. 2
02

Whether there were valid reasons for termination

Holding

No valid reason was proved; the employer failed to discharge its burden under Section 43 of the Employment Act, 2007

Reasoning

The Respondent alleged the Claimant was caught stealing shoes and was summarily dismissed, but there was no evidence she was arrested or charged with theft by servant. The allegation of theft was never raised in discussions before the Ministry of Labour or in response to the demand notice. The court found the theft unproved and therefore no valid reason for termination existed.

p. 3
03

Whether due process was followed before termination

Holding

No due process was followed as envisaged under Section 41 of the Employment Act, 2007; the dismissal was unfair for breach of natural justice

Reasoning

The termination on 27th September 2008 occurred during the pendency of the repealed Employment Act Cap 224, under which reasons for dismissal were not mandatory. Nonetheless, the court found the dismissal unfair and unlawful because no procedural fairness or rules of natural justice were observed, and no hearing or process as contemplated by Section 41 of the Employment Act, 2007 was undertaken.

p. 3

Legal principles established

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  • In any claim arising out of termination of a contract, the employer bears the burden of proving the reason or reasons for termination; failure to do so renders the termination unfair

Court orders

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  1. 1.1 month's salary in lieu of notice Kshs. 14,000
  2. 2.Service pay of 15 days for each year worked (20 years) Kshs. 140,000
  3. 3.House allowance equivalent to 15% of salary for 240 months Kshs. 504,000
  4. 4.12 months' salary as compensation for unlawful termination Kshs. 168,000
  5. 5.Total award of Kshs. 826,000 plus costs and interest

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 45
  • Employment Act (repealed), Cap 224
Jurisdiction invoked
Jurisdiction as the Employment & Labour Relations Court following transfer of Nairobi HCCC No. 21 of 2010 to the ELRC; claim arising out of termination of employment

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, "Florence Mugure Gitau v Musa Abdul t/a Trendy Touch & another [2016] KEELRC 429 (KLR)", Case Analysis (2016). ELRC 300/12 (formerly Nairobi HCCC No. 21 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/429/eng@2016-10-18

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