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ELRCDismissedCause No. 432 of 2016· [2018] KEELRC 21 (KLR)

Richard Kibet Yegon v Agventure Ltd [2018] KEELRC 21 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
17 September 2018
2,641 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 dismissed a watchman's unfair termination claim entirely, finding his absence from duty which led to theft justified summary dismissal.

What this practically means

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Executive summary

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The claimant, employed as a watchman/security officer by the respondent from around December 2011/January 2012 until 14th June 2016, sued claiming one month's notice pay, unremitted NSSF contributions, house allowances, and compensation for unfair termination, additionally alleging unpaid overtime and annual leave. His case was that termination on 14th June 2016 was without notice, reasons or a hearing. The respondent, through its Operations Manager Giles Littlewood, denied unfairness, contending the claimant absconded duty on 13th June 2016 leading to theft of a drill and grinder, was given a chance to explain but failed, and that the respondent in goodwill paid notice and severance. The court held that the absence from work and resulting loss warranted summary dismissal under sections 44(3) and (4) of the Employment Act, 2007, and the claimant was given a fair hearing under section 41(2). Following George Musamali v G4S and Joseph Onyango Asere v Brookside Dairy, the court held that internal disciplinary processes differ from court trials, and the failure to state reasons in the termination letter, where gross misconduct was clear and a hearing given, could not attract compensation. All ancillary claims (notice pay, NSSF, house allowance, annual leave, overtime) were declined, the NSSF claim being misconceived as contributions are due to the statutory body. The entire claim was dismissed with the claimant ordered to pay 50% of the respondent's costs, the court taking account of the respondent's settlement-mindedness.

Key legal issues

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01

Whether the termination was unfair

Holding

Not unfair; the absence from work resulting in loss of property warranted summary dismissal under sections 44(3) and (4), and the claimant was given a chance to explain under section 41(2)

Reasoning

The respondent's witness testified the claimant absconded duty on 13th June 2016, leading to theft of a drill and grinder. The claimant was recalled and given a chance to explain but gave no satisfactory response. The procedure followed in a case warranting summary dismissal under sections 44 and 41(2) could not be faulted. Failure to state reasons in the termination letter was not grave enough to negate fair hearing.

p. 3
02

Whether notice pay, NSSF contributions, house allowance, annual leave and overtime were due

Holding

All declined; notice was paid generously, NSSF dues are due to the statutory body, leave and overtime records/admissions defeated those claims, and wages were inclusive of house allowance within wage orders

Reasoning

The respondent paid seven days' notice which, given justification for summary dismissal, was generous. NSSF contributions belong to the statutory body. Leave records were submitted without counter-evidence and the claimant admitted leave taken. The claimant admitted a rest day, defeating overtime. Wages plus bonus were within wage orders and inclusive of housing, so further house allowance would be unjust enrichment.

p. 4

Legal principles established

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  • Termination of employment must be accompanied by valid, justifiable and genuine reasons, and even a contractual termination clause is subject to section 35(4) of the Employment Act
  • An employer cannot terminate employment at will; the employee retains the right to challenge the termination
  • Where gross misconduct is clear and the employee was given a fair chance to defend himself, the employer's failure to state reasons in the termination letter does not warrant compensation
  • Unremitted NSSF contributions are not payable to the employee; the proper claim is for service pay

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.The claimant to pay 50% of the costs due to the respondent

Authorities

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Legislation

  • Employment Act, 2007section 35(4)
  • Employment Act, 2007section 44(3) and (4)
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 40
  • Employment Act, 2007section 46
  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 27(2)

Cases cited (2)

  • George Musamali versus G4S Security Services Kenya Ltd
    [2016] eKLR
  • Joseph Onyango Asere versus Brookside Dairy Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and employment benefits claims)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Richard Kibet Yegon v Agventure Ltd [2018] KEELRC 21 (KLR)", Case Analysis (2018). Cause No. 432 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/21/eng@2018-09-17

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