Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 1823 of 2013· [2018] KEELRC 244 (KLR)

Jackson Mbihani Indumba v Metal Crown Limited [2018] KEELRC 244 (KLR)

Employment and Labour Relations Court
14 December 2018
OMOnesmus N. Makau
1,808 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court upheld a kitchen worker's dismissal for taking food, ruling that a written admission to a show cause letter made an oral hearing unnecessary.

What this practically means

#

Executive summary

#
The Claimant, a general worker in the Respondent's kitchen, was terminated on 15th July 2013 for stealing food items. He claimed the termination was unfair, alleging he was taking waste food to the dustbin and gave some to a security guard on request; he sought reinstatement, salary for 11 years, notice pay, leave, service pay, damages for 4-hour detention and humiliation, and a certificate of service. The Respondent maintained that the claimant was caught carrying away food, was given a show cause letter to which he responded by admission, and that all terminal dues (Kshs.34,876) were paid. The suit was disposed of by written submissions on pleadings, statements and documents. The court framed two issues: whether the termination was unfair, and entitlement to reliefs. It held that under sections 43(2) and 44(4)(g) of the Employment Act the employer genuinely believed the claimant had stolen food, constituting a valid and fair reason. On procedure, it found the claimant's written response to the show cause letter was an admission, so no oral disciplinary hearing was required under section 41. The termination was therefore fair under section 45. All reliefs were refused: notice pay and compensation failed because termination was fair; leave and July salary were already paid; service pay was barred by section 35(6) as the claimant was an NSSF beneficiary; damages for detention failed for lack of evidence; the 11-year prospective salary claim had no basis in law. The only relief granted was a certificate of service under section 51. The suit was dismissed with no order as to costs. Judgment delivered by Onesmus N. Makau, J, on 14th December 2018 at Nairobi.

Key legal issues

#
01

Whether there was a valid and fair reason for termination

Holding

The respondent proved a valid and fair reason - the claimant was caught giving food items from the kitchen to a security guard, justifying the employer's genuine belief in theft.

Reasoning

The claimant admitted removing food items from the kitchen and giving them to a guard. The Occurrence Book entry produced by the respondent corroborated this. Under sections 43(2) and 44(4)(g), the employer's genuine belief that food was stolen to serve guards sufficed as a valid and fair reason.

p. 3
02

Whether a fair procedure was followed under section 41

Holding

The show cause letter and the claimant's written response amounting to admission of the offence made an oral hearing unnecessary.

Reasoning

Section 41 requires an employer to explain the reason for dismissal and give the employee a chance to defend himself. The claimant was served a show cause letter and responded in writing, admitting removal of the food items; where accusations are admitted or substantially admitted, no oral hearing is legally required.

p. 3
03

Entitlement to reliefs

Holding

All reliefs refused except the certificate of service; terminal dues were already paid and the claimant was disqualified from service pay by section 35(6).

Reasoning

Because termination was fair, notice pay and compensation were unavailable. Leave and July 2013 salary had been paid. NSSF membership barred the service pay claim. The damages claim failed for lack of evidence. Section 51 entitles the claimant to a certificate of service.

p. 3

Legal principles established

#
  • Where an employer serves a show cause letter and the employee admits or substantially admits the accusations, there is no legal obligation to hold an oral disciplinary hearing.
  • Under section 43(2) of the Employment Act, the reasons for termination are those matters which the employer genuinely believed to exist at the time of termination.
  • An employer may summarily dismiss an employee who commits, or on reasonable grounds is suspected to have committed, a criminal offence against the employer's property (section 44(4)(g)).

Court orders

#
  1. 1.Declaration that the claimant's termination was fair; the suit dismissed save for the prayer for Certificate of Service, which is granted under section 51 of the Employment Act
  2. 2.Suit dismissed with no order as to costs

Authorities

#

Legislation

  • Employment Actsection 35(6)
  • Employment Actsection 41
  • Employment Actsection 43 and 43(2)
  • Employment Actsection 44(4)(g)
  • Employment Actsection 45
  • Employment Actsection 51

Cases cited (1)

  • Kenya Revenue Authority vs Manguiya Salim Murgani
    [2010] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance Memorandum of Claim for unfair termination)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jackson Mbihani Indumba v Metal Crown Limited [2018] KEELRC 244 (KLR)", Case Analysis (2018). Cause No 1823 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/244/eng@2018-12-14

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