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ELRCDismissedNot stated in judgment· [2018] KEELRC 1066 (KLR)

Joseph Nzomo Munyenge v Auto Express Limited [2018] KEELRC 1066 (KLR)

Employment and Labour Relations Court of Kenya
20 September 2018
2,137 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 a workshop assistant's summary dismissal for a tiny lunch expense overrun, because he was dishonest and refused a lawful instruction.

What this practically means

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Executive summary

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The Claimant, a workshop assistant, sued after his summary dismissal on 20th February 2017 for allegedly falsifying lunch records on his off days (14th and 23rd January 2017, exceeding his Kshs. 100 meal allocation by Kshs. 10 and Kshs. 50) and refusing to obey his supervisor's instructions. He sought unpaid February salary, one month's pay in lieu of notice, one year's leave pay and 12 months' compensatory damages, plus a declaration that the dismissal violated Article 50 of the Constitution and Sections 42 and 47 of the Employment Act. The Respondent maintained that the Claimant's written explanation of 17th February 2017 admitted the excess consumption and non-payment, amounting to gross misconduct justifying summary dismissal under Section 44(4)(e). The court distilled four issues: whether the termination was unfair, whether it was for a valid reason, entitlement to the prayers, and costs. It accepted the Claimant was heard through a written explanation and inquiry by his manager. Although it observed that the conduct - exceeding the lunch allowance by a paltry Kshs. 60 - would ordinarily attract only a warning, the court held that the Claimant's dishonesty and failure to obey a lawful command engaged Section 44(1)(e) of the Employment Act and met the threshold for summary dismissal. All prayers were refused and the suit was dismissed with each party bearing their own costs, the court adopting that order to put the matter behind the parties.

Key legal issues

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01

Whether the summary dismissal for exceeding the lunch allowance and refusing a lawful command was fair and for a valid reason

Holding

Yes - the refusal to obey a lawful command triggered Section 44 of the Employment Act and justified summary dismissal notwithstanding the minor value involved

Reasoning

The court acknowledged the dismissal concerned a paltry Kshs. 60 excess and that the conduct would ordinarily attract only a warning. However, the Claimant admitted exceeding his limit and failing to pay, and his dishonesty and failure to obey a lawful command engaged Section 44(1)(e), meeting the threshold for summary dismissal. Both procedural (explanation given in writing) and substantive requirements were found satisfied.

p. 2
02

Whether the termination was unfair for want of a hearing

Holding

No - the Claimant was asked to explain and gave a written defence through his letter dated 17th February 2017

Reasoning

The Respondent's witness confirmed the Claimant was summoned, questioned, and asked to give a written explanation which he gave. Although he was not accompanied by a witness of his choice and proceedings were not recorded, the court found the inquiry was conducted in tandem with company policy. On the evidence the procedural fairness requirement was met and the claim of no hearing failed.

p. 2
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Entitlement to the pecuniary prayers

Holding

All prayers refused; the suit was dismissed

Reasoning

Having found no unfair termination and a valid reason for summary dismissal, the court held the Claimant was not entitled to unpaid salary, notice pay, leave pay or 12 months' compensatory damages. Leave encashment had already been paid in final dues. The court nonetheless ordered each party to bear own costs as a conciliatory measure.

p. 3

Legal principles established

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  • Refusal to obey a lawful and proper command within the scope of an employee's duty constitutes gross misconduct justifying summary dismissal under Section 44(1)(e) of the Employment Act, even where the underlying act is minor.

Court orders

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  1. 1.Suit dismissed
  2. 2.Each party to bear their own costs (no order as to costs)

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Employment ActSection 44 (including Section 44(4)(e) and Section 44(1)(e))
  • Employment ActSection 42
  • Employment ActSection 47

Cases cited (7)

  • Donald Odeke v Fidelity Security Limited
    [2012] eKLR
  • Alex Akoth Ndonga v Kenya Revenue Authority
    [2015] eKLR
  • Gibson D. Mwanjala v Kenya Revenue Authority
    [2015] eKLR
  • Moses Kaunda Moro v CMC Motors Group Ltd
    [2013]
  • Joseph Otieno Nyolo v Rift Valley Railways (K) Limited
    [2014] eKLR
  • Kenya Petroleum Oil Workers Union v Kenya Shell Limited
    [2014] eKLR
  • Bamburi Cement Limited v William Kilonzi
    [2016] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; Employment and Labour Relations Court Act) - not expressly cited in the judgment extract

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, "Joseph Nzomo Munyenge v Auto Express Limited [2018] KEELRC 1066 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1066/eng@2018-09-20

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