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ELRCPartially AllowedCause Number 633 of 2010· [2017] KEELRC 1794 (KLR)

Morris Nyavanga Kellum v Fairview Hotel Limited & 3 others [2017] KEELRC 1794 (KLR)

Employment and Labour Relations Court of Kenya
10 February 2017
843 words in judgment
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The bottom line

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A Kenyan court ruled that even overwhelming evidence of employee theft cannot justify dismissal without giving the worker a fair disciplinary hearing.

What this practically means

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Executive summary

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The claimant, employed by the 1st respondent as a room steward from 27th October 1999, was transferred in July 2008 to work as a general house cleaner at the 2nd respondent's house. On 1st March 2010 he was accused of stealing the 2nd respondent's money. The respondents' case was that the 2nd respondent laid a trap using currency notes treated with a chemical visible under ultra violet light, photocopied the notes, and after the notes went missing, examined the hands of the household employees in the presence of security officers and police. The claimant allegedly showed substantial traces of the chemical, admitted stealing up to Kshs 70,000, was taken to Capital Hill Police post and released, and was then issued with a summary dismissal letter on 6th March 2010. He denied the reasons for his dismissal and sought a declaration that the dismissal was unlawful plus compensation. The court found the trap's preparatory process not credible, noting there was no evidence of who treated the money, where, or what precautions prevented accidental contact with the chemical. Assuming the trap was sound, the court nevertheless held that the law requires both a valid reason and a disciplinary process giving the employee a chance to be heard; no evidence showed the claimant was given any hearing before summary dismissal. The dismissal was therefore found unfair. Judgment was entered against the respondent for one month's salary in lieu of notice (Kshs 8,000), service pay of 15 days per completed year for nine years (Kshs 36,000), and six months' salary as compensation for unfair dismissal (Kshs 48,000), totalling Kshs 92,000, plus costs of the suit.

Key legal issues

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01

Validity of the reason for dismissal

Holding

The court found the trap evidence potentially sufficient to justify dismissal had procedure been followed, but doubted the credibility of the preparatory process

Reasoning

The court analysed the treated-currency trap and found the preparatory process not credible because there was no evidence on who treated the money and where, nor caution against accidental contact with the chemical. It assumed, however, that if proper caution was taken, traces on the claimant's hands would suffice as a valid reason for dismissal.

p. 2
02

Procedural fairness in dismissal

Holding

The dismissal was procedurally unfair because the claimant was never taken through a disciplinary hearing

Reasoning

The court held that the law requires both a valid reason and a disciplinary process where the employee is given a chance to defend himself. No evidence in the pleadings or oral evidence showed the claimant was taken through any disciplinary hearing or similar process before summary dismissal, rendering the dismissal unfair notwithstanding the alleged overwhelming evidence.

p. 2

Legal principles established

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  • Termination of employment requires both a valid and justifiable reason and adherence to a fair disciplinary procedure, even where the evidence of misconduct is overwhelming

Court orders

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  1. 1.Judgment against the respondent for one month's salary in lieu of notice (Kshs 8,000)
  2. 2.Service pay at the rate of 15 days' pay for each year of completed service (Kshs 36,000)
  3. 3.Six months' salary as compensation for unfair dismissal (Kshs 48,000)
  4. 4.Total award of Kshs 92,000 plus costs of the suit

Authorities

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Legislation

  • Employment Acttermination and disciplinary procedure provisions (general reference)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims (Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Morris Nyavanga Kellum v Fairview Hotel Limited & 3 others [2017] KEELRC 1794 (KLR)", Case Analysis (2017). Cause Number 633 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1794/eng@2017-02-10

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