David Kanyingi Njagi v Paretto Printing Works Ltd [2017] KEELRC 1767 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi

17 February 2017

ANAbuodha J. N.

738 words in judgment

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The bottom line

A Kenyan court ruled that even when theft is alleged, an employer must give the employee a hearing and prove the misconduct, or the dismissal becomes unfair.

What this practically means

Executive summary

The claimant alleged he was employed on 2nd January 2010 as a Machine Operator at Kshs 17,400 per month and was summarily dismissed on 12th October 2012 without reason, claiming terminal dues of Kshs 74,785. The respondent countered that the claimant was summarily dismissed after being found in possession of adhesive printing material stolen from it, alleging he admitted the theft and agreed not to lodge any claim. In evidence, the claimant denied leaving papers with security or admitting any theft. The respondent's witness, Mr Simon Nguyai, testified that the claimant's boss found papers at the security house attributed to the claimant, who allegedly admitted ownership before five people. The court held that although valid reasons may have existed, the dismissal process was rushed and failed to comply with the Employment Act's requirement of a hearing before dismissal. Further, no guard was called to confirm the claimant left the items, and the boss who found the alleged stolen items was never called as a witness, so the respondent failed to prove the reason for dismissal to the required standard. Judgment was entered against the respondent: one month's salary in lieu of notice (Kshs 17,400), 47.75 days' leave (Kshs 31,955), 12 days worked in October (Kshs 8,030), four months' salary as compensation for unfair dismissal (Kshs 69,600), and costs of the suit.

Key legal issues

Validity of the reason and fairness of the procedure for summary dismissal

Holding

Although there may have been valid reasons, the dismissal procedure was rushed and non-compliant with the Employment Act, and the reason was not proved to the required standard because the boss who found the alleged stolen items was not called as a witness

Reasoning

The court found the dismissal process rushed and procedurally flawed under the Employment Act. The allegation rested on papers allegedly left at the guard house, but no guard recorded a statement or testified. The respondent's witness did not witness the incident first-hand, and the boss who found the alleged stolen items was never called to explain his absence. Consequently the respondent failed to prove the reason for dismissal to the required standard.

p. 2

Legal principles established

Even where valid reasons for dismissal may exist, an employer must afford the employee a hearing before dismissal as required by the Employment Act
The employer bears the burden of proving the reason for dismissal, and where key witnesses to the alleged misconduct are not called, the reason is not proved to the required standard

Court orders

1.Judgment entered against the respondent
2.One month's salary in lieu of notice - Kshs 17,400
3.47.75 days of leave - Kshs 31,955
4.12 days worked in October - Kshs 8,030
5.Four months' salary compensation for unfair dismissal - Kshs 69,600
6.Costs of the suit

Authorities

Legislation

Employment Act

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act (dispute over unfair termination and terminal dues)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "David Kanyingi Njagi v Paretto Printing Works Ltd [2017] KEELRC 1767 (KLR)", Case Analysis (2017). Cause Number 1774 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1767/eng@2017-02-17

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