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ELRCDismissedCause No 972 of 2012· [2018] KEELRC 423 (KLR)

Alexina Kerubo Misaro v Postal Corporation Of Kenya [2018] KEELRC 423 (KLR)

Employment and Labour Relations Court of Kenya
30 November 2018
MOMaureen Onyango
2,624 words in judgment
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The bottom line

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A Kenyan court dismissed both an employee's unfair dismissal claim and the employer's counterclaim because she refused the disciplinary process and the lost money was never proven to be her responsibility.

What this practically means

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Executive summary

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Alexina Kerubo Misaro, employed by the Respondent from 1991 and last serving as acting Post Master at Mobil Plaza Post Office, Nairobi, was interdicted on 10th August 2006 following the loss of Kshs.761,710, charged to a show cause letter of 8th May 2007 for gross negligence, and summarily dismissed by letter of 16th October 2007. Her advocates replied that the pending criminal charge (Makadara Criminal Case No. 4234 of 2006) rendered the disciplinary process sub judice, and she gave no written explanation. She was acquitted of theft on 15th July 2011, but her unanswerable appeal letter to the Respondent went unheeded. She sued for unfair termination, terminal benefits, damages and interest; the Respondent counterclaimed Kshs.761,710 as monies lost through her gross negligence. The court framed four issues: procedural and substantive validity of the termination, entitlement to reliefs, the counterclaim, and costs. Because the termination predated the Employment Act 2007, the court applied the Employment Act No. 2 of 1976, which required no justification for termination; and, applying Ndolo J's line of authority, held that a claimant who squanders the employer's internal grievance process cannot complain of being unheard, even under sections 41 and 43 of the 2007 Act. The claim was dismissed. The counterclaim failed because the Respondent never demanded the money, RW1 did not speak to it, the claimant was acquitted, and others had access to the unlocked safe. Both claim and counterclaim were dismissed with each party bearing their own costs. Judgment delivered at Nairobi on 30th November 2018 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the summary dismissal was procedurally and substantively valid

Holding

The dismissal was lawful. The Employment Act 1976, applicable at the time of termination, did not require justification of grounds; and although the respondent need not have done so, it asked the claimant to explain herself, which she declined through her advocates on the ground of the pending criminal case. She therefore could not complain of being condemned unheard.

Reasoning

The termination letter predated the Employment Act 2007, so the 1976 Act applied, under which no justification for termination was required. The respondent nonetheless interdicted the claimant and issued a show cause letter. Her advocates responded that the matter was sub judice and she would not participate. The court applied the line of Ndolo J authorities holding that an employee who declines to use internal grievance mechanisms cannot later allege denial of a hearing, and found even sections 41 and 43 of the 2007 Act would not avail her.

p. 3
02

Whether the respondent's counterclaim for Kshs.761,710 was proved

Holding

Not proved and dismissed. The money was stolen from a safe left unlocked; other staff could access it; the respondent never responded to the claimant's averments on security lapses; the claimant was acquitted of theft; and the amount was never demanded from her.

Reasoning

RW1 only mentioned the loss as the reason for dismissal and did not speak to the counterclaim. The criminal court acquitted the claimant, finding it had not been shown she was the sole custodian of the keys, that the office was left unguarded between 5.00 p.m. and 6.00 p.m., and that others could have accessed the safe. The respondent did not rebut the claimant's evidence that the unlockable main door had been reported to it. On that uncontroverted evidence, liability was not established.

p. 4

Legal principles established

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  • The law applicable to a termination is the law in force at the time of termination; under the Employment Act 1976 there was no requirement to justify grounds of termination
  • An employee who declines to avail herself of the employer's internal disciplinary/grievance process cannot later complain that she was not heard
  • A counterclaim for monies allegedly lost through an employee's negligence must be strictly proved; where other persons had access to the safe and the employee was acquitted of theft, liability is not made out

Court orders

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  1. 1.The claim is dismissed
  2. 2.The counterclaim is dismissed
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 47(1)
  • Employment Act, 2007Sections 41(2), 43(1) and (2), 45(1)
  • Employment Act, No. 2 of 1976 (now repealed)Section 16

Cases cited (7)

  • Sarah Wanyanga Muchiri Vs Rev. Bishop Henry Kathii
    (2013) eKLR
  • British Leyland UK Limited V. Swift
    1RLR 91
  • Sylvanus Otieno Odiaga V Attorney General
    (2014) eKLR
  • Jackson Butiya -v- Eastern Produce Kenya Limited
    Industrial Cause No. 335 of 2011
  • Matthew Luch Cherusa -V- Poverelle Sisters of Belgamo
    (2013) eKLR
  • David Njeka -vs- Lavage Dry Cleaners Limited
    [2013] eKLR
  • Jennifer Osodo -vs- Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court Act (not expressly cited; claim determined under Employment Act, No. 2 of 1976 as the law in force at termination)

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, "Alexina Kerubo Misaro v Postal Corporation Of Kenya [2018] KEELRC 423 (KLR)", Case Analysis (2018). Cause No 972 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/423/eng@2018-11-30

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