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ELRCPartially AllowedCause No. 327 of 2013· [2018] KEELRC 274 (KLR)

Vincent Nyachibwede v Bob Morgan Services Limited [2018] KEELRC 274 (KLR)

Employment and Labour Relations Court
18 December 2018
2,820 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 awarded a dismissed rider Kshs. 239,200 because his employer couldn't prove theft allegations with evidence or give him a fair hearing.

What this practically means

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Executive summary

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The Claimant, formerly a Security Guard and later a Rider with the Respondent earning a gross salary of Kshs. 18,400/= per month, was suspended without pay on 17th February 2012 over allegations of negligent performance and misuse of company resources, and summarily dismissed on 22nd August 2012 on allegations of siphoning fuel and performing below expectations. He claimed his suspension and dismissal were unlawful, unfair and inhumane, alleging he was never heard, and sought notice pay, unpaid salary for the suspension period, and damages of up to 12 months' salary, together with a certificate of service and costs. The Respondent maintained that the Claimant and other Riders siphoned an average of 5 litres of fuel per motorcycle, that a disciplinary committee heard representations before recommending summary dismissal under Section 44(4)(g) of the Employment Act, and that terminal dues were remitted to the Claimant's bank to offset a loan. The court framed three issues: validity of the reasons for dismissal, due process, and remedies. It found the Respondent called no eyewitness to the alleged fuel siphoning, never availed the investigation report or disciplinary minutes, and failed to call the accusers, holding that mere suspicion cannot prove theft and that the burden under Section 43 was not discharged. It further found no fair procedure under Section 41. The dismissal was declared unfair and unjustified, and the court awarded one month's notice pay, six months' unpaid salary for the suspension period, and six months' salary as compensation, totalling Kshs. 239,200/=, with costs and interest at court rates. The 12 months' compensation sought was not fully awarded and the certificate of service prayer was not addressed.

Key legal issues

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01

Whether there were valid reasons to warrant dismissal of the Claimant

Holding

The Respondent failed to prove the alleged fuel siphoning; the dismissal was without valid reasons and therefore unfair under Sections 43 and 45 of the Employment Act

Reasoning

The Respondent alleged the Claimant siphoned fuel, amounting to theft by servant, but called only its Human Resource Manager. The two persons who allegedly implicated the Claimant were not called as witnesses. No investigation report was availed. The Claimant denied the theft and there was no contrary evidence, so the burden of proving the reason for dismissal under Section 43 was not discharged.

p. 4
02

Whether the Claimant was subjected to due process before dismissal

Holding

No due process was followed; the Claimant was not accorded the fair disciplinary process required by Section 41 of the Employment Act

Reasoning

Section 41 obliges an employer to explain the reasons for contemplated termination and to hear and consider the employee's representations. The investigation report and minutes of the disciplinary process were not availed to the court, and the witness who allegedly mentioned the Claimant did not attend the disciplinary hearing. The court therefore concluded the process was procedurally flawed.

p. 4
03

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded notice pay, unpaid salary during suspension and 6 months' compensation for unfair termination, less than the 12 months sought

Reasoning

Having found the dismissal unfair both on reason and procedure, the court exercised its discretion under Section 49 to award 6 months' salary as compensation, plus one month's notice pay and the unpaid salary for the six months of suspension during which the Claimant reported to work but was not paid.

p. 4

Legal principles established

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  • An employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair under Section 45 of the Employment Act
  • Mere suspicion, however strong, cannot amount to proof of misconduct justifying summary dismissal

Court orders

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  1. 1.Payment of 1 month's salary in lieu of notice of Kshs. 18,400/=
  2. 2.Payment of salary unpaid during suspension from 17th February to 22nd August 2012, being 6 months' salary of Kshs. 110,400/=
  3. 3.Payment of 6 months' salary as compensation for unlawful and unfair termination, being Kshs. 110,400/=
  4. 4.Total award of Kshs. 239,200/= to the Claimant
  5. 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment

Authorities

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Legislation

  • Employment Act 2007Section 44(4)(g)
  • Employment Act 2007Section 45
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 41
  • Employment Act 2007Section 43
  • Employment Act 2007Section 36
  • Employment Act 2007Section 49
  • Employment Act 2007Section 51
  • Constitution of Kenya 2010fair labour practices (invoked generally)

Cases cited (4)

  • Kenya Union of Domestic, Hotels, Educational Institutions & Hospitals Workers -vs- Mombasa Sports Club
    Cause No. 440 of 2013
  • Clement Karuri -v- Kenya Ports Authority
    [2018] eKLR
  • Mc Kinley vs B.C. Tel.
    [2001] 2 S.C.R. 161
  • George Musamali -vs- G4S Security Services Kenya Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations disputes) over a claim for terminal dues and compensation for unfair summary dismissal

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, "Vincent Nyachibwede v Bob Morgan Services Limited [2018] KEELRC 274 (KLR)", Case Analysis (2018). Cause No. 327 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/274/eng@2018-12-18

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