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ELRCDismissedNot stated in the judgment· [2018] KEELRC 476 (KLR)

Samuel Kyulu Ndunda v Delmonte (K) Limited [2018] KEELRC 476 (KLR)

Employment and Labour Relations Court
11 December 2018
1,726 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 upheld an employee's dismissal over fuel theft, ruling the employer's genuine belief in misconduct plus a fair process made it lawful.

What this practically means

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Executive summary

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The Claimant, employed in 1993 as a casual labourer and confirmed in July 1994 as an irrigation leadman, sued his former employer for wrongful and unfair termination following his summary dismissal on 3rd September 2015. He was accused of siphoning fuel from the Respondent's motorbike assigned to him, was arrested, charged in Thika Criminal Case No. 4293 of 2015 with stealing, and acquitted on 30th November 2016 under Section 206 of the Criminal Procedure Code, but the Respondent upheld his dismissal. He sought a declaration of unfair dismissal and various monetary reliefs including salary balances, notice pay, 12 months' compensation, CBA arrears, service gratuity for 21 years and unpaid leave, totalling over Kshs 1.7 million. The Respondent maintained the Claimant admitted siphoning fuel, was given a show cause letter and a disciplinary hearing with shopsteward representation, and that his acquittal did not absolve him. The court applied Section 43(2) of the Employment Act, holding that the reason for termination is what the employer genuinely believed to exist at the time. It found the Claimant's explanation - that he bought fuel for a colleague - implausible, held that the arrest with the siphoned fuel was sufficient cause under Section 44, and that he was accorded the Section 41 safeguards. The dismissal was found lawful and fair, the suit was dismissed, and the court made no order as to costs.

Key legal issues

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01

Substantive justification for termination under Section 43 of the Employment Act

Holding

The Respondent genuinely believed the Claimant had siphoned fuel, and the Claimant's explanation did not add up; the employer discharged its burden under Section 43

Reasoning

Section 43(2) provides that the reason for termination is what the employer genuinely believed to exist at the time. The Claimant claimed he bought fuel for a colleague with his own money while using the employer's motorbike, leaving his workplace to fetch it. The court found this account implausible. The apprehension that he had siphoned fuel was therefore not misplaced, satisfying the substantive justification requirement.

p. 2
02

Procedural fairness under Section 41 of the Employment Act

Holding

The Claimant was given the statutory safeguards - he was issued a show cause letter and taken through a disciplinary hearing where he was represented by a shopsteward

Reasoning

The Respondent's witness testified that the Claimant was issued with a show cause letter, was taken through a disciplinary hearing where he was represented by a shopsteward, before summary dismissal. The court accepted this account and found that the process undertaken accorded the Claimant the safeguards required by law, so the dismissal was procedurally fair despite the Claimant's allegation of coercion.

p. 2

Legal principles established

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  • The reason for termination is the matters that the employer at the time of termination genuinely believed to exist, per Section 43(2) of the Employment Act
  • Where an employee's conduct provides genuine grounds for dismissal under Section 44 and the statutory safeguards were observed, the dismissal is lawful and fair

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 43(1) and 43(2)
  • Employment ActSection 41
  • Employment ActSection 44(4)(g)
  • Penal CodeSection 275
  • Criminal Procedure CodeSection 206

Cases cited (8)

  • Bernard Dodo Mbaja v Air Traffic Limited
    [2014] eKLR
  • Daniel Kiplagat Kipkebut v SMEP Deposit Taking Microfinance Limited
    [2016] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Martin Bundi Gitonga v Del Monte Kenya Limited
    [2016] eKLR
  • Banking Insurance and Finance Union (K) v Standard Chartered Bank of Kenya Ltd
    [2013] eKLR
  • Alphonce Machanga Mwachanya v Operation 680 Ltd
    [2103] eKLR
  • Amos Ogamba Bosire v Wakenya Pamoja Savings Credit Society Ltd
    [2017] eKLR
  • William Kariarithi Gacheru v East African Packaging Industries Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair termination under Section 45)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Samuel Kyulu Ndunda v Delmonte (K) Limited [2018] KEELRC 476 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/476/eng@2018-12-11

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