Mwendwa Sanare v Thames Electrical Limited [2016] KEELRC 1020 (KLR)
The bottom line
#A Kenyan guard wrongfully dismissed over unproven theft allegations won KSh 235,434 because his employer skipped the required hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether an employment relationship existed between the Claimant and the Respondent
The court found the employment relationship established on the unrebutted testimony of the Claimant, the Respondent's own witness statements, and the Respondent's letter to the Labour Officer dated 1.11.2010.
The Respondent denied the employment relationship but neither attended the hearing nor called witnesses. The Claimant's testimony that he was employed as a guard from 1998 stood unrebutted. The Respondent's own witness statements filed in court confirmed the Claimant was employed as a guard, and a letter the Respondent wrote to the Labour Officer expressly stated he was in the Respondent's employment as a day time Guard at the material time.
Whether the termination was for a valid and fair reason
The Respondent failed to prove a valid and fair reason; the alleged theft was not substantiated.
The alleged reason for dismissal was theft of copper metal bars from a Godown. However, the Claimant's evidence that he did not commit the offence was unrebutted, the police released him after four days without charge because the Respondent failed to avail witnesses, and the Respondent called no witnesses at trial. The court credited the Claimant's account that the Godown was opened by the young Indians who removed the metal bars.
Whether a fair procedure under section 41 of the Employment Act was followed
No fair procedure was followed; the Claimant was dismissed verbally without a hearing, arrested and detained for four days.
The Claimant's unrebutted evidence was that he was dismissed verbally, threatened with loss of benefits, told to remain at the workplace without working, then arrested at about 5pm and locked up for four days. That was not the procedure prescribed by law. Section 41 requires a personal hearing in the presence of a fellow employee or union representative of the employee's choice before a termination decision is reached; no such hearing was accorded.
Reliefs
One month salary in lieu of notice (kshs. 16,200), October 2010 salary for 25 days (kshs. 13,500), 21 leave days (kshs. 11,340) and maximum compensation of 12 months' gross salary (kshs. 194,400) were awarded; the unpleaded claim of kshs. 89,712.20 was dismissed and no service pay appears to have been awarded.
Notice pay and October salary were awarded as prayed or computed. The leave claim succeeded because no leave records were produced to disprove it. Compensation was set at the statutory maximum of 12 months' gross salary because of the Claimant's long service from 1998 to 2010 and his non-contribution to the termination through misconduct. The claim of kshs. 89,712.20 failed as unpleaded.
Legal principles established
#- Termination of employment is unfair if the employer fails to prove valid and fair reasons and a fair procedure
- Section 41 of the Employment Act requires a personal hearing before termination in the presence of a companion of the employee's choice
Court orders
#- 1.Judgment entered for the Claimant in the sum of kshs. 235434
- 2.Costs of the suit awarded to the Claimant
- 3.Interest on the decretal sum awarded
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwendwa Sanare v Thames Electrical Limited [2016] KEELRC 1020 (KLR)", Case Analysis (2016). Cause 1017 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1020/eng@2016-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.