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ELRCPartially AllowedNot stated in the judgment as provided· [2016] KEELRC 888 (KLR)

Patrick Mutune Kimeu v Athi Stores Limited [2016] KEELRC 888 (KLR)

Employment and Labour Relations Court
29 June 2016
3,284 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent as a mechanic from April 2006 and rising to workshop supervisor, was summarily dismissed on 22nd February 2013 following the disappearance of a Mercedes Benz camshaft valued at Kshs. 200,000 from the store on 22nd January 2013. He claimed salary for January and February 2013, three months' salary in lieu of notice, gratuity for 7 years, unpaid leave for 3 years and maximum compensation for wrongful dismissal. The Respondent defended the dismissal as summary dismissal for gross misconduct (theft) under Section 44(4)(g) of the Employment Act, contending the Claimant, who was the last person with the store key, failed to record an investigative statement and absconded. The court found the Claimant bore the burden of proving unlawful termination, while the employer had to justify the dismissal. Although theft would have justified dismissal for cause, the Respondent ignored the fair-hearing procedure in Section 41 of the Employment Act: the Claimant was never called to defend himself and the unrebutted evidence indicated he was chased away and told never to return. The dismissal was therefore unfair. However, the monetary claims failed for want of proof: no bank statements proved non-payment of salary, leave dues were unproven, and as an NSSF contributor the Claimant could not claim service pay. The court awarded compensation of six months' salary (Kshs. 190,296.60), costs of the suit, and interest thereon from the date of judgment, subject to statutory deductions.

Key legal issues

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01

Whether the summary dismissal was lawful despite alleged gross misconduct (theft of a Mercedes Benz camshaft)

Holding

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.

Reasoning

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.

p. 4
02

Whether the Respondent proved the Claimant's participation in the theft

Holding

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.

Reasoning

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.

p. 2
03

Entitlement to monetary reliefs: salary arrears, notice pay, leave and service pay

Holding

Only compensation for unfair termination was awarded (6 months' salary); claims for salary arrears, leave dues and service pay failed for want of proof.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Compensation for 6 months Kshs. 190,296.60
  2. 2.Cost of the suit
  3. 3.Interest on (a) and (b) above from date of judgment till payment in full
  4. 4.The sums in (a) above subject to statutory deductions

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(4)(g)
  • Employment ActSection 35(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair and wrongful summary dismissal)

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, "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.