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ELRCPartially AllowedEmployment Cause filed 30th August 2013 (Memorandum of Claim dated 23rd August 2013)· [2018] KEELRC 404 (KLR)

Mwende Mbiti v Citrus Inn Limited [2018] KEELRC 404 (KLR)

Employment and Labour Relations Court
20 December 2018
MOMAUREEN ONYANGO
3,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee's firing was unfair because she was never given a proper hearing, awarding her nearly KShs. 291,000.

What this practically means

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Executive summary

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The claimant, a waiter promoted to supervisor in 2009, sued her former employer seeking a declaration that her June 2013 termination was wrongful, illegal and unfair, plus terminal dues of Kshs.411,400, interest, costs and a certificate of service. The respondent defended the summary dismissal, alleging the claimant colluded to falsify a receipt for beer purchased by the Manager and failed to account for the proceeds of a sixth crate, and maintained that a hearing was afforded and all dues paid. Two issues were framed: whether the dismissal was wrongful and unfair, and whether the claimant was entitled to the prayers sought. Relying on Donald Odeke v Fidelity Security Ltd and Nicholus Muasya Kyula v FarmChem Limited, the court found that the respondent failed to prove compliance with section 41 of the Employment Act: RW1's evidence disclosed no disciplinary hearing and an admission that he did not establish who was at fault, so the reason for termination was not proved under section 43 and the summary dismissal was unfair. On remedies, the court awarded one month's salary in lieu of notice, service pay (the claimant not being an NSSF member), uncontroverted salary arrears, leave days, public holiday pay admitted by RW1, house allowance because the salary fell below the statutory minimum wage, and six months' salary as compensation. The NSSF and NHIF claims failed as such monies are payable only to statutory bodies. Judgment was entered for Kshs.290,950.50, with costs to the claimant and interest from the date of judgment.

Key legal issues

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01

Whether the summary dismissal for gross misconduct was fair and lawful

Holding

The dismissal was unfair because the respondent failed to prove compliance with section 41 of the Employment Act - no proper hearing or disciplinary panel was established

Reasoning

Although the respondent alleged gross misconduct (falsification of a receipt and failure to account for sale proceeds), RW1's evidence showed only a brief verbal exchange with no disciplinary hearing. RW1 admitted he did not establish who between the claimant and Jedidah was at fault. The respondent thus failed to prove both the procedure under section 41 and the reason for termination under section 43, rendering the summary dismissal unfair.

p. 3
02

Whether the claimant was entitled to the terminal dues claimed

Holding

The claimant was awarded one month's salary in lieu of notice, service pay, salary arrears, leave days, public holiday pay, house allowance and 6 months' compensation; NSSF and NHIF claims were rejected as payable only to statutory bodies

Reasoning

RW1 admitted the claimant worked public holidays; the salary arrears were uncontroverted; the claimant was not an NSSF member so service pay was payable under section 35(5) and (6); there was no proof leave was taken; and the salary was below the statutory minimum wage, justifying house allowance at 15% of the statutory minimum wage.

p. 4

Legal principles established

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  • If an employee is not heard before termination, the termination is unfair regardless of the offence charged
  • An employer must have internal systems and processes to investigate and verify alleged misconduct before terminating employment
  • Where the employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment lies on the employer (Section 10(7) Employment Act, invoked by claimant)

Court orders

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  1. 1.Judgment entered for the claimant against the respondent in the total sum of Kshs.290,950.50
  2. 2.One month's salary in lieu of notice of Kshs.8,000
  3. 3.Service pay of Kshs.24,000
  4. 4.Cumulative salary arrears of Kshs.45,000
  5. 5.Leave days at 21 days per year for 6 years (126 days) of Kshs.38,769.20
  6. 6.Pay in lieu of public holidays (11 x 6 = 66 days) based on double daily rate of Kshs.40,615.40
  7. 7.House allowance of Kshs.86,565.90
  8. 8.Compensation of 6 months' salary in the sum of Kshs.48,000 for unfair dismissal
  9. 9.Respondent to pay claimant's costs of the suit
  10. 10.Decretal sum to attract interest from date of judgment

Authorities

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Legislation

  • Employment ActSection 37
  • Employment ActSection 10(7)
  • Employment ActSections 41, 43, 44(4), 45(2), 47(5), 49, 50, 35(5), 35(6), 31(1) and (2)

Cases cited (8)

  • Milkah Khakayi Kulathi vs Sandstorm (Africa) Limited
    Cause Number 758 of 2012
  • Judicial Service Commission -vs- Gladys Boss Shollei & Another
    Civil Appeal No. 50 of 2014
  • Michael Dowling -vs- Work Place Safety and Insurance Board
    [2004] CAN Lll 43692
  • Kenya Ports Authority -vs- Fadhil Juma Kisuwa
    (2017) eKLR
  • Donald Odeke –vs- Fidelity Security Ltd
    Cause No. 1998 of 2011
  • Nicholus Muasya Kyula V FarmChem Limited
    Industrial Cause Number 1992 of 2011; (2012) LLR 235 (ICK)
  • Daniel Kiplagat Kipkeibut v Smep Deposit Taking Micro Finance Limited
    [2016] eKLR
  • Pius Toboso Matendechere -vs- Jaswant Singh & Brothers
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Memorandum of Claim under the Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Mwende Mbiti v Citrus Inn Limited [2018] KEELRC 404 (KLR)", Case Analysis (2018). Employment Cause filed 30th August 2013 (Memorandum of Claim dated 23rd August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/404/eng@2018-12-20

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