Charity Ngotho & 2 others v Sensations Limited [2018] KEELRC 269 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were unfairly dismissed
The claimants were constructively terminated effective 29.10.2010 (the date of arrest), but the termination was not unfair because their participation in and signature of the stock taking showing 43 missing watches entitled the respondent to a reasonable suspicion of culpability.
The claimants were arrested and charged with stealing by servant after a stock taking they signed showed 43 watches missing. The court held the allegation of theft broke the implied condition of trust and confidence, effecting constructive termination from the date of arrest. However, because the claimants had themselves signed the stock taking inventory, the respondent was entitled to form a reasonable suspicion of culpability, consistent with the subsequent charge and prosecution, so the termination was fair.
Whether the counterclaim should be allowed
The counterclaim failed both on the evidence of value and on limitation under section 90 of the Employment Act, 2007.
Although 43 watches were found missing on 29.10.2010, the respondent provided no evidence establishing their value. Further, the counterclaim was not filed until 17.02.2014, more than three years after discovery of the loss; claims flowing from the contract of service under section 90 of the Employment Act, 2007 are subject to a three-year limitation period, which had lapsed on or about 29.10.2013.
Legal principles established
#- Where an employer makes an allegation of theft against an employee, the implied condition of trust and confidence in every contract of service is fundamentally broken and the employee may consider themselves constructively terminated
- A constructive termination founded on a reasonable suspicion of employee culpability, supported by the employee's participation in and signature of the incriminating stock taking, is not unfair
- A claim flowing from the contract of service under section 90 of the Employment Act, 2007 is subject to a three-year limitation period
Court orders
#- 1.The memorandum of claim is dismissed
- 2.The counterclaim is dismissed
- 3.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (including section 90 on limitation for claims flowing from the contract of service)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charity Ngotho & 2 others v Sensations Limited [2018] KEELRC 269 (KLR)", Case Analysis (2018). Cause No 1569 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/269/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.