Joseph Muramba Makokha v Amicarbe Travel Service Ltd [2018] KEELRC 1200 (KLR)
The bottom line
#A Kenyan court dismissed a driver's entire claim because he ignored his employer's show-cause notice and skipped the disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Justification of summary dismissal under section 44(4) of the Employment Act
The summary dismissal was justified; the claimant breached his contract and code of conduct by carrying unauthorised passengers and going off-route, and refused to respond to the show cause notice or attend the disciplinary hearing.
The court found the claimant was bound by his employment contract and code of conduct to follow set routes and not carry unauthorised passengers. He was served with notices to show cause but refused to accept them, and declined to attend the disciplinary hearing. Where the claimant felt innocent he ought to have attended to disapprove the allegations. His failure amounted to insubordination, discharging the respondent's duty under section 41(2) and justifying dismissal under section 44(4).
Entitlement to notice pay and compensation
None due in a justified summary dismissal.
Because the dismissal was found justified under section 44(4), notice pay and compensation for unfair termination do not arise. Salary was only due up to 26th August 2013, the date of dismissal; claims beyond that date without labour offered would amount to unjust enrichment.
Overtime claim
Declined; overtime was covered by shift allowance and the claimant did not work weekends.
The respondent produced work records showing timelines and work sheets, and salaries paid were inclusive of shift allowances and overtime hours worked. Records showed the claimant was not at work during weekends, undermining his claim that he worked 11 hours a day for 6 days a week from 5am to after 9pm without overtime pay.
Claims for unremitted NSSF and NHIF
Not payable to the claimant even if not remitted.
Statutory deductions arising from employment are due to the statutory bodies legally empowered to receive them. The claimant cannot claim them personally, and the court cannot justify such an award to him.
Legal principles established
#- An employee served with a notice to show cause who fails to respond or attend a disciplinary hearing cannot later claim the allegations were fabricated; failure to attend justifies summary dismissal under section 44(4) of the Employment Act
- Statutory dues such as NSSF and NHIF arising out of employment are payable to the statutory bodies and cannot be awarded to the employee
- Notice pay and compensation are not payable where a summary dismissal is justified
Court orders
#- 1.The claims made are without merit and are hereby dismissed
- 2.Each party shall bear own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution / Employment and Labour Relations Court Act (Employment and Labour Relations Court, first-instance jurisdiction over employment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Muramba Makokha v Amicarbe Travel Service Ltd [2018] KEELRC 1200 (KLR)", Case Analysis (2018). Cause No. 1665 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1200/eng@2018-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.