Karisa Charo Kiraga v Nakayima Hauliers [K] Limited [2016] KEELRC 1087 (KLR)
The bottom line
#A Kenyan court ruled a truck driver's firing was unfair because the employer skipped proper procedures, even though the driver's insubordination justified discipline.
What this practically means
#Executive summary
#Key legal issues
#Who instigated the termination of employment
Termination was by the Employer, not desertion by the Claimant
Although the Respondent asserted the Claimant deserted, the court found the Respondent retrieved the truck, engaged a fresh driver, took the ignition keys, stopped paying salary after 18 February 2015, and made no effort to discipline the Claimant or formally end the relationship. In the Claimant's mind the message was that his contract had been terminated by the Respondent. The court was not persuaded that the Claimant voluntarily walked out.
Whether the Claimant's refusal to drive on reduced fuel amounted to insubordination
Yes - the Claimant was at fault in declining the employer's instructions
The court held the fuel allocation decision was a management prerogative; it was not for the Claimant to determine fuel sufficiency or advise the Respondent how to manage its business. Other drivers accepted the reduction. By parking the vehicle and refusing to drive for 3 days, the Claimant demonstrated insolence, arrogance and lack of cooperation, constituting insubordination under Section 44(1)(e) of the Employment Act.
Whether termination was procedurally fair despite substantive justification
No - termination was unfair for procedural default, with compensation reduced for the Claimant's contribution
The Respondent did not follow Sections 41, 43 and 45 of the Employment Act: the Claimant was not heard, no charges were preferred, and no notice was issued. The court declared termination unfair but found the Claimant substantially contributed to the circumstances, justifying only 1 month's salary as compensation rather than the 12 months sought.
Whether the Respondent's Counter-claim for loss of user was proved
No - the Counter-claim was rejected
The Respondent's witnesses did not establish loss of user of 3 days at Kshs. 150,000; nothing was said in the oral evidence of Abdulmajid and Issa, and no document supported the claim. The figure of Kshs. 50,000 per day was a mere sum floated in pleadings and submissions without evidential grounding.
Legal principles established
#- The decision on the amount of fuel allocated to an employer's vehicles is a management prerogative which employees cannot veto
- Refusal to obey a reasonable order given with proper authority constitutes insubordination under Section 44(1)(e) of the Employment Act
- Even where an employer has substantive justification to terminate, termination is unfair if the procedure under Sections 41, 43 and 45 of the Employment Act is not followed
- An employer's conduct, such as withdrawing an employee's tools of work and stopping salary, may evidence termination by the employer notwithstanding a claim of desertion
- A claim for loss of user must be supported by evidence; a figure floated in pleadings and submissions without evidential grounding will be rejected
Court orders
#- 1.It is declared termination was unfair but the Claimant substantially contributed to the circumstances leading to termination
- 2.The Respondent shall pay to the Claimant 1 month salary in compensation for unfair termination and 1 month salary in lieu of notice at a total of Kshs. 40,000
- 3.Other prayers by both Parties are declined
- Jurisdiction invoked
- Industrial Court (Procedure) Rules 2010, Rule 27(1)(a); dispute over unfair and unlawful termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Macharia Gakure & another v Amica Savings & Credit Limited [2019] KEELRC 1930 (KLR)[2019] KEELRC 1930 (KLR)26 Mar 2019
Cite this brief
#Cite this brief
Caselaw, "Karisa Charo Kiraga v Nakayima Hauliers [K] Limited [2016] KEELRC 1087 (KLR)", Case Analysis (2016). Cause Number 194 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1087/eng@2016-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.