Timothy Asudi Malwa v E-Gap Solutions Limited [2016] KEELRC 1157 (KLR)
The bottom line
#A Kenyan employer must prove misconduct itself in a fair hearing—it cannot simply rely on a police case to justify firing an employee.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was substantively fair
The dismissal was substantively unfair because the Respondent relied on the failed criminal case and did not itself prove the allegations under Section 43
The dismissal was premised on theft allegations. Section 43 of the Employment Act obliges the employer to prove such allegations on a balance of probability. The Respondent instead banked on the criminal case at Kibera Law Courts and, following the Claimant's discharge, made no attempt to discharge its own mandate. Following the Kulati decision, an employer cannot abdicate its disciplinary obligation to the police; the dismissal was therefore substantively unfair.
Whether the dismissal was procedurally fair
The dismissal was procedurally unfair for breach of the mandatory procedure in Section 41
Section 41 requires the employer to explain the reasons for disciplinary action, allow a representative, and hear explanations. The Claimant was not summoned to respond to the theft accusations; the Respondent's Director admitted there was no record of any hearing, no show cause letter was issued and the suspension was communicated verbally. The mandatory procedural fairness requirements were therefore not observed, rendering the dismissal procedurally unfair.
Effective date of employment and salary
The certificate of incorporation was not conclusive of the employment start date and the unsigned payroll summaries were rejected; the Court adopted 1st June 2004 and Kshs. 45,000
The Respondent produced a certificate of incorporation dated 3rd July 2007 to defeat the claimed 2004 start date, but its Director could not explain his earlier testimony that he found the Claimant already working in 2003. The unsigned payroll summaries were contradicted by the Director's testimony in the criminal court. In the absence of a written contract and itemised pay statement, the Court adopted the Claimant's testimony on both dates and salary.
Whether the Respondent proved its counterclaim
The counterclaim for Kshs. 36,000 was not proved and was dismissed
The Respondent claimed Kshs. 36,000 for 16 wall mirrors and 5 plastic chairs allegedly stolen by the Claimant. The Court found the counterclaim was not proved and dismissed it.
Legal principles established
#- An employer alleging theft as the basis for dismissal must prove it on a balance of probability under Section 43 of the Employment Act and cannot abdicate its disciplinary obligation to the police
- Where an employer fails to document the employment contract and terms, the Court adopts the employee's testimony on the effective date and salary
- Failure to issue an itemised pay statement under Section 20 of the Employment Act allows the Court to adopt the employee's stated salary
Court orders
#- 1.Award to the Claimant of Kshs. 774,000 made up of 8 months' salary in compensation (Kshs. 360,000), 1 month's salary in lieu of notice (Kshs. 45,000), salary for May 2010 (Kshs. 45,000), service pay for 6 years (Kshs. 135,000) and leave pay for 6 years (Kshs. 189,000)
- 2.Respondent directed to issue the Claimant with a certificate of service
- 3.Respondent to pay the costs of the case
- 4.Award to attract interest at court rates from the date of the award until payment in full
- 5.Respondent's counterclaim dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim and counterclaim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timothy Asudi Malwa v E-Gap Solutions Limited [2016] KEELRC 1157 (KLR)", Case Analysis (2016). Cause No 1146 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1157/eng@2016-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.