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ELRCPartially AllowedCause No. 384 of 2017· [2018] KEELRC 137 (KLR)

Duncan Ndegwa Muriuki v Lasit Limited [2018] KEELRC 137 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
22 November 2018
1,496 words in judgment
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The bottom line

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A Kenyan court upheld a summary dismissal because the employee ignored a show cause notice, but ordered the employer to pay accrued leave dues.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a Tractor Driver from 11th October 2005 on a gross wage of Ksh.13,445.00, was summarily dismissed by letter dated 11th July 2017. He claimed notice pay, two years' accrued leave pay, house allowance, compensation and costs, asserting that no notice to show cause was issued and the dismissal was without basis. The respondent's case was that the claimant was allocated ploughing duties at Ol Kalou in May 2017 but worked without due diligence, was recalled and issued a show cause notice, declined to respond (insisting on speaking to the managing director), absconded duty from 14th June 2017, and was lawfully dismissed. The court noted the respondent failed to attach the letter of summary dismissal and to submit work records, a mandatory requirement under section 10(7) of the Employment Act, 2007, so the claimant's account of the facts under section 47(5) was taken as true. However, applying Jackson Butiya v Eastern Produce, the court held that an employee who fails to respond to a show cause notice squanders the chance to safeguard his employment; the summary dismissal was justified for failure to abide lawful instructions and absenteeism. Notice pay and compensation were therefore refused. The respondent admitted owing 21 leave days at Ksh.6,783.00, which the court ordered processed and paid, together with a Certificate of Service. The house allowance claim failed under section 31 of the Employment Act as the claimant had opted out of employer-provided housing on his own volition. The claims were dismissed with each party bearing its own costs.

Key legal issues

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01

Duty of employer to produce work records

Holding

The respondent did not attach the letter of summary dismissal nor produce work records; under section 10(7) of the Employment Act this is mandatory, so the claimant's account under section 47(5) had to be taken as true as to the facts leading to dismissal.

Reasoning

Section 10(7) of the Employment Act, 2007 obliges the employer to submit all work records when a suit is filed. The respondent did not attach the summary dismissal letter, so the reasons for dismissal rested only on oral evidence. The court therefore accepted the claimant's narrative of the facts leading to dismissal under section 47(5), while still assessing whether the dismissal was substantively justified on the conduct established.

p. 2
02

Response to show cause notice and procedural fairness

Holding

A show cause notice is not an inference of guilt; the employee must respond as required. By refusing to respond and instead insisting on speaking to the managing director, the claimant squandered the chance to safeguard his employment, and the summary dismissal was justified.

Reasoning

Relying on Jackson Butiya v Eastern Produce, the court held that an employee who squanders internal grievance mechanisms cannot later complain that he was not heard. The court found the claimant failed to respond to the show cause notice, declined a meeting with the general manager, and absconded from 14th June 2017, justifying summary dismissal for insubordination and absenteeism.

p. 2
03

Accrued leave days

Holding

The respondent admitted owing 21 leave days computed at Ksh.6,783.00, which the claimant declined to collect; the court accepted the respondent's record and ordered the leave dues paid.

Reasoning

The claimant was not clear and specific as to when he took leave or was recalled to work. The respondent admitted 21 leave days at Ksh.6,783.00. The court preferred the respondent's account and ordered that the leave dues be processed and paid, together with a Certificate of Service.

p. 2
04

House allowance claim

Holding

Under section 31 of the Employment Act, 2007 the respondent had obliged by providing housing until 2011 when the claimant opted out on his own volition; he could not then claim house allowance.

Reasoning

The claimant was housed by the respondent from 2005 to 2011, after which he sought alternative accommodation following the post-election violence without the respondent's approval. Section 31 required the employer to provide housing or allowance, which it had done; the claimant's unilateral decision to opt out could not ground a claim for house allowance for the period after 2011.

p. 3

Legal principles established

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  • An employer who fails to submit employment work records as required under section 10(7) of the Employment Act, 2007 leaves the claimant's account of the facts leading to dismissal under section 47(5) to be taken as the truth.
  • An employee issued with a show cause notice must respond to it, even where the employee considers himself wrongly accused; failure to respond leaves the employer free to take action and infer insubordination.
  • An employee who declines to respond to a show cause notice and instead demands to speak to a senior officer squanders the opportunity to safeguard his employment and cannot complain of the resulting summary dismissal.
  • An employee who opts out of employer-provided accommodation on his own volition cannot later claim house allowance.

Court orders

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  1. 1.The claimant's claims are dismissed for lack of merit
  2. 2.The respondent shall process and pay the due leave days' pay of Ksh.6,783.00 to the claimant
  3. 3.The respondent shall issue the claimant with a Certificate of Service
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 31

Cases cited (1)

  • Jackson Butiya v Eastern Produce
    Cause 335 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Duncan Ndegwa Muriuki v Lasit Limited [2018] KEELRC 137 (KLR)", Case Analysis (2018). Cause No. 384 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/137/eng@2018-11-22

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