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ELRCDismissedCause Number 576 of 2016 (Original High Court Civil Appeal No. 204 of 2007)· [2017] KEELRC 1752 (KLR)

Resort Kenya Limited v Robert Ombeva Musila [2017] KEELRC 1752 (KLR)

Employment and Labour Relations Court of Kenya
17 February 2017
1,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed employers cannot dismiss workers for theft without evidence—summary dismissal always requires a valid, provable reason.

What this practically means

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Executive summary

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This was a first appeal, originally filed as High Court Civil Appeal No. 204 of 2007 and transferred to the Employment and Labour Relations Court at Nairobi as Cause Number 576 of 2016, against the judgment of Hon. E. C. Cherono SRM delivered on 23rd February 2007 in Milimani CMCC No. 1910 of 2004. The respondent, a security guard, had sued Resort Kenya Limited after being summarily dismissed on allegations of involvement in the theft of the company's motor vehicle; the trial magistrate found the dismissal wrongful and awarded him salary for December 2003, two months' pay in lieu of notice, and a gratuity of Kshs 91,000/=. The appellant raised seven grounds, contending principally that gratuity was neither pleaded nor payable under the repealed Employment Act cap 226, that the notice pay was unproven, that no December 2003 salary was earned, and that under section 17 of the repealed Act an employer could summarily dismiss without reason. Counsel for the appellant relied on Blay v Pollard & Morris, Central Bank of Kenya v Davies Kiriko Muteti and Rift Valley Textiles Ltd v Edward Onyango Oganda; counsel for the respondent relied on the Regulation of Wages (Protection Security Services) Order 1998 under cap 229. The court, exercising its first-appeal duty to review the evidence afresh on the record, found the trial magistrate's judgment sound: no evidence linked the respondent to the theft, he was never charged, and summary dismissal under the repealed Act required a reason. The appeal was dismissed with costs.

Key legal issues

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01

Whether summary dismissal under the repealed Employment Act cap 226 could be effected without any reason

Holding

The court rejected the appellant's contention that under section 17 of the repealed Act an employer could dismiss without reason; summary dismissal requires a valid reason and the dismissal of the respondent for alleged involvement in theft, unsupported by any evidence, was wrongful.

Reasoning

The court held that if summary dismissal required no reason, there would be no need for the statute to provide circumstances under which it could take place. Summary dismissal is a drastic step. On the evidence, no proof linked the respondent to the theft of the motor vehicle; police investigations cleared him, he was never charged, and the vehicle was not specifically assigned to him. The trial magistrate's finding of wrongful dismissal was therefore sound.

p. 3
02

Whether the magistrate erred in awarding gratuity not pleaded

Holding

The appeal on this ground failed; the court found no error in the trial magistrate's award, the respondent having submitted that the Regulation of Wages (Protection Security Services) Order 1998 under cap 229 recognized and made gratuity payable.

Reasoning

The appellant, relying on Blay v Pollard & Morris and Central Bank of Kenya v Davies Kiriko Muteti, argued gratuity was not pleaded and was distinct from severance pay under the repealed Employment Act. The respondent countered that gratuity was payable under the Regulation of Wages (Protection Security Services) Order 1998 and followed from the finding of wrongful dismissal. On its fresh review of the record, the court found no error in the trial court's conclusions.

p. 3
03

Whether the trial court erred in finding the claim uncontroverted and in awarding December 2003 salary and two months' notice pay

Holding

The court found no merit in these grounds; the trial magistrate's analysis and conclusions on the evidence were upheld.

Reasoning

The appellant argued that the respondent produced no documentation entitling him to two months' notice pay and that termination effective 3rd November 2003 meant no December salary was earned. The respondent noted the appellant's own witness, Mr Ndichu, admitted the notice would have been two months, and that no witness denied receipt of the summary dismissal letter on 10th December 2003. The court, having reviewed the record, saw no error in the trial magistrate's judgment.

p. 3

Legal principles established

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  • Summary dismissal is a drastic step requiring the employer to have a reason; an employer cannot dismiss without reason merely because the dismissal is summary.
  • An employee summarily dismissed has the right to question the reason for such dismissal before a court of law, which has jurisdiction to interrogate the veracity of the reason.
  • On a first appeal, the court reviews the evidence afresh but relies entirely on the record, without the benefit of hearing oral evidence.

Court orders

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  1. 1.The appeal fails and is dismissed
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Employment Act (cap 226, repealed)section 17
  • Regulation of Wages and Conditions of Employment Act (cap 229)
  • Regulation of Wages (Protection Security Services) Order1998 Order

Cases cited (3)

  • Blay Vs Pollard & Morris
    [1930] 1 KB 682
  • Central Bank of Kenya Vs Davies Kiriko Muteti
    [2009] eKLR
  • Rift Valley Textiles Ltd Vs Edward Onyango Oganda
    [1994] eKLR
On appeal from
Chief Magistrate's Court, Milimani
CMCC No. 1910 of 2004
Jurisdiction invoked
First appeal from the Chief Magistrate's Court to the High Court (transferred to the Employment and Labour Relations Court), on the entire decision of the trial magistrate

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Resort Kenya Limited v Robert Ombeva Musila [2017] KEELRC 1752 (KLR)", Case Analysis (2017). Cause Number 576 of 2016 (Original High Court Civil Appeal No. 204 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1752/eng@2017-02-17

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