Michael Kyalo Maithya v Victory Construction Company Limited [2016] KEELRC 1855 (KLR)
The bottom line
#Even where an employee is caught stealing, a Kenyan employer must still give a proper hearing before summary dismissal, or the dismissal becomes unfair.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of summary dismissal for suspected theft
The dismissal was procedurally unfair because the claimant was not given a hearing in the presence of a fellow employee as required by section 41(2) of the Employment Act.
The court accepted that gross misconduct such as theft justifies summary dismissal under section 44(4). However, section 41(2) imposes a mandatory procedural requirement: the employee must be heard in the presence of a fellow employee of his choice. The respondent's witness testified that the claimant was summoned alone to his office and dismissed; there was no evidence any other employee was called. Such a hearing need not resemble a judicial trial, but the minimum internal process was not met, making the sanction unfair.
Entitlement to notice pay where termination is procedurally irregular
Where termination of employment is procedurally irregular, notice pay is due.
The court distinguished substantive justification (which the respondent arguably had on suspicion of theft) from procedural regularity. Because the dismissal fell foul of section 41(2), the claimant was deprived of the notice he would otherwise forfeit on summary dismissal for gross misconduct, and one month's salary was awarded in lieu of notice.
Burden regarding leave records and incomplete employment records
The respondent, as keeper of employment records, bore the consequences of failing to produce records of leave taken or leave pay, and the claimant was awarded leave for a complete year at 21 days.
Although the respondent argued from NSSF records that the claimant did not work a full year, the court held that employment was admitted and employment records were the respondent's responsibility. Non-remittance of NSSF dues was a matter for the labour officer, not a defence. On the oral contract the claimant had earned 21 days' leave for a complete year, compensated at one month's salary.
Legal principles established
#- Before summary dismissal under section 44(4) of the Employment Act, an employer must comply with the mandatory hearing requirement of section 41(2), which does not require a judicial trial but an internal process in the presence of a fellow employee of the employee's choice.
- Failure to follow the set procedure before dismissal renders the resulting sanction unfair.
- An employer is required in law to issue a written contract of employment under sections 8, 9 and 10 of the Employment Act; failure to do so does not reflect good employment practices.
Court orders
#- 1.Compensation awarded at Kshs.15,000.00
- 2.May 2011 salary at Kshs.15,000.00
- 3.Notice pay at Kshs.15,000.00
- 4.Leave due at Kshs.15,000.00
- 5.Each party shall bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, sections 41, 44, 45)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kyalo Maithya v Victory Construction Company Limited [2016] KEELRC 1855 (KLR)", Case Analysis (2016). Cause No. 815 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1855/eng@2016-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.