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ELRCPartially AllowedCause 1017 of 2011· [2016] KEELRC 1020 (KLR)

Mwendwa Sanare v Thames Electrical Limited [2016] KEELRC 1020 (KLR)

Employment and Labour Relations Court
10 June 2016
1,351 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan guard wrongfully dismissed over unproven theft allegations won KSh 235,434 because his employer skipped the required hearing.

What this practically means

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Executive summary

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The Claimant, engaged by the Respondent as a night guard from 6 April 1998 and later deployed as a day guard without off days at a monthly salary of kshs. 16,200, sued for kshs. 316,512 (as amended) arising from the termination of his services on 25 October 2010. He testified that following a theft alarm at a Godown on 24 October 2010, during which young men of Indian origin admitted opening the Godown and removing copper bars, his employer accused him of theft, verbally dismissed him the next day, instructed him to remain on the compound without working, and had him arrested at about 5pm and detained at Industrial Area Police Station for four days before release without charge. The Respondent, despite being served, neither attended the hearing nor called witnesses, and denied the employment relationship in the alternative. The court held the employment relationship proved by the Claimant's unrebutted testimony, the Respondent's own witness statements and its letter to the Labour Officer confirming his employment. On unfair termination, the Respondent failed to prove a valid and fair reason for dismissal (the alleged theft being unsubstantiated) and failed to follow the fair procedure mandated by section 41 of the Employment Act, no personal hearing having been given. The court awarded one month's salary in lieu of notice (kshs. 16,200), October 2010 salary for 25 days worked (kshs. 13,500), 21 leave days (kshs. 11,340) and maximum compensation of 12 months' gross salary (kshs. 194,400) given long service and no contributory misconduct. The claim of kshs. 89,712.20 was dismissed as unpleaded. Judgment was entered for kshs. 235,434 plus costs and interest.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondent

Holding

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.

Reasoning

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.

p. 2
02

Whether the termination was for a valid and fair reason

Holding

The Respondent failed to prove a valid and fair reason; the alleged theft was not substantiated.

Reasoning

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.

p. 2
03

Whether a fair procedure under section 41 of the Employment Act was followed

Holding

No fair procedure was followed; the Claimant was dismissed verbally without a hearing, arrested and detained for four days.

Reasoning

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.

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04

Reliefs

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Judgment entered for the Claimant in the sum of kshs. 235434
  2. 2.Costs of the suit awarded to the Claimant
  3. 3.Interest on the decretal sum awarded

Authorities

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Legislation

  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes

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, "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.