Patrick Mutune Kimeu v Athi Stores Limited [2016] KEELRC 888 (KLR)
The bottom line
#A Kenyan court ruled an employer's dismissal was unfair because it skipped the mandatory fair hearing, even though theft would have justified firing.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was lawful despite alleged gross misconduct (theft of a Mercedes Benz camshaft)
The dismissal was unlawful because the Respondent ignored the procedure in Section 41 of the Employment Act; no disciplinary hearing was held and the Claimant was not called to defend himself.
The court accepted that theft, if proved, would constitute gross misconduct under Section 44(4)(g) permitting summary dismissal. However, the Respondent did not follow Section 41: the Claimant was not given a hearing, was not suspended pending investigation, and the assertion that he was chased away and told never to return was never rebutted. Procedural fairness is mandatory even where substantive grounds exist, so the manner of dismissal was unlawful and unfair.
Whether the Respondent proved the Claimant's participation in the theft
The Respondent did not tender evidence directly connecting the Claimant to the theft; the case rested on the Claimant having been the last person with the store key, and no witness saw him take the item.
Defence witness Munyao admitted he never saw the Claimant take the spare and did not know who took it. Investigator Gari conceded there was nothing to show the Claimant refused to record a statement, and the theft was not reported to police. Suspicion arising from custody of the key was insufficient to justify dismissal without affording the Claimant an opportunity to be heard.
Entitlement to monetary reliefs: salary arrears, notice pay, leave and service pay
Only compensation for unfair termination was awarded (6 months' salary); claims for salary arrears, leave dues and service pay failed for want of proof.
The Claimant, bearing the burden of proof, did not produce bank statements to show salary for January and February 2013 was unpaid, nor documents proving untaken leave. As an NSSF contributor he could not claim service pay. Given the abrupt, humiliating end - the unrebutted claim that he was called a dog and chased away - a six months' salary compensation was considered sufficient.
Legal principles established
#- In a suit asserting termination of employment, the claimant must prove the termination was unlawful, while the employer must show the dismissal was justified (Section 43, Employment Act).
- Even where gross misconduct justifying summary dismissal under Section 44(4)(g) exists, ignoring the fair-hearing procedure in Section 41 of the Employment Act renders the dismissal unlawful.
- He who alleges non-payment must prove it; a bank statement is the simplest proof of non-payment of salary.
Court orders
#- 1.Compensation for 6 months Kshs. 190,296.60
- 2.Cost of the suit
- 3.Interest on (a) and (b) above from date of judgment till payment in full
- 4.The sums in (a) above subject to statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair and wrongful summary dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mutune Kimeu v Athi Stores Limited [2016] KEELRC 888 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/888/eng@2016-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.