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ELRCPartially AllowedCause No 1341 of 2012· [2016] KEELRC 1041 (KLR)

Joel Njeru Mathenge v Transwide Pharmaceuticals [2016] KEELRC 1041 (KLR)

Employment and Labour Relations Court
24 June 2016
ANAbuodha Jorum Nelson
837 words in judgment
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The bottom line

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A Kenyan court ruled an employer must follow fair procedure even when theft allegations justify dismissal, awarding the employee notice pay and compensation.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2008 (as a dispenser and later in the wholesale department distributing medicine) without a written letter of appointment but with a staff identity card, claimed that on 16th November 2011 he and two colleagues were verbally and indefinitely suspended over allegations of missing drugs. He was never called back, was unpaid during the period, and considered himself constructively and wrongfully terminated. The respondent denied any suspension, contending instead that the claimant absconded duty after being implicated in theft of drugs and picked up by police for questioning. The respondent's witness, Mr. Kenneth Ndichu, testified that a stock-take established missing medicine, anonymous staff reports implicated four employees including the claimant, they were trailed to a pharmacy known for buying stolen medicine, and the matter was reported to police; no one was prosecuted. The court held that the reason for termination - implication in theft - was serious enough to justify termination, and that the claimant need not have been charged with a criminal offence. However, the respondent failed to prove procedural fairness: it produced no evidence of any attempt to contact the claimant to resume work. The court found the claimant's version plausible and the termination procedurally unfair. It awarded one month's salary in lieu of notice (Kshs. 16,258.00), six months' salary as compensation for unfair termination (Kshs. 97,548.00), and costs of the suit. Judgment was dated and delivered at Nairobi on 24th June 2016 by Abuodha Jorum Nelson, Judge.

Key legal issues

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01

Validity of the reason for termination

Holding

The implication of the claimant in theft of drugs was a valid and justifiable reason for termination, even without a criminal charge.

Reasoning

The court found the reasons for dismissal serious enough to justify termination. Proof of implication in theft by the employer sufficed; criminal prosecution was not a prerequisite. This finding favoured the respondent on substantive justification.

p. 2
02

Procedural fairness of the termination

Holding

The termination was procedurally unfair because the respondent failed to follow the procedure laid down in law, including proving attempts to contact the claimant to resume work.

Reasoning

The respondent alleged the claimant absconded duty after being picked up by police, yet it never wrote to the claimant or his colleagues asking them to resume duties, and the claimant was never paid during the suspension. The court found the claimant's version of events plausible and held the termination was carried out following improper procedure, hence unfair.

p. 2

Legal principles established

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  • Employment is founded on trust and confidence; termination requires justifiable and valid reasons whose burden of proof rests on the employer, while the employee must show the dismissal was unfair, all on a balance of probability.
  • An employee need not be charged with a criminal offence for implication in theft to justify termination.
  • Where an employer alleges an employee absconded, it must prove by evidence its attempts to contact the employee to resume work.

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Kshs. 16,258.00
  2. 2.Payment of six months' salary as compensation for unfair termination of services of Kshs. 97,548.00
  3. 3.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court first-instance jurisdiction over the claimant's memorandum of claim for unfair termination (employment relationship admitted by both parties)

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, "Joel Njeru Mathenge v Transwide Pharmaceuticals [2016] KEELRC 1041 (KLR)", Case Analysis (2016). Cause No 1341 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1041/eng@2016-06-24

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