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ELRCDismissedNot stated in extract· [2018] KEELRC 1258 (KLR)

Robert Mofat Odhiambo v Harambee Sacco Limited [2018] KEELRC 1258 (KLR)

Employment and Labour Relations Court
17 August 2018
MOMaureen Onyango
2,708 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent SACCO as Senior Security Officer from 19th May 2003, was summarily dismissed on 2nd March 2015 after irregular cash deposits of Kshs.30,000 were made into his FOSA savings account and withdrawn by him. The deposits formed part of a wider fraud involving 64 suspect entries in 42 accounts totalling Kshs.4,225,000 identified by Craft Silicon Limited. The claimant sought salary during suspension, salary for unexpired contract periods, leave allowance, notice pay, severance pay, gratuity, medical cover and damages for malicious termination, contending that his suspension had been lifted by court orders of 30th September 2014 as reaffirmed on 17th April 2015, that the disciplinary process was defective, and that he was discriminated against and acted as a whistle-blower. The respondent defended the dismissal under Sections 41, 43 and 44(4)(g) of the Employment Act and counterclaimed for Kshs.981,057.71 in outstanding loans. The court, Maureen Onyango J, held the dismissal was for valid reason and with fair procedure: the stay orders had been suspended when disciplinary action was taken; the claimant was given opportunity to be heard through sms and registered email but failed to attend hearings; his discrimination and whistle-blower claims were unsubstantiated, and he was found to have misled the court with a selectively illegible newspaper advert. The remedies sought failed, and judgment was entered for the respondent on the counterclaim for Kshs.981,057.71 with no orders as to costs.

Key legal issues

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01

Whether the summary dismissal was for valid reason and with fair procedure

Holding

The dismissal was regular - there was valid reason (irregular deposits of Kshs.30,000 into the claimant's account which he withdrew) and fair procedure (opportunity to be heard given but squandered).

Reasoning

Section 41 requires fair hearing and Section 43 valid reasons. The claimant was suspended, invited to disciplinary hearings on 21st November 2014 and 12th February/January 2015 but failed to attend despite being notified by sms and registered email. The stay orders obtained in September 2014 had been suspended in October 2014, so no court orders barred the disciplinary process at the time it was taken. His whistle-blower and discrimination claims were unsubstantiated.

p. 4
02

Effect of the court orders of 30th September 2014 and 17th April 2015

Holding

The orders reinstating the claimant came too late - the employment had already been terminated, and the amended claim contained no prayer relating to the suspension.

Reasoning

The stay orders of 30th September 2014 were suspended on 17th October 2014. The disciplinary process and dismissal occurred when there were no subsisting stay orders. The ruling of 17th April 2015 lifting the suspension and ordering reinstatement postdated the dismissal, so there was no suspension left to lift. This informed the amendment of the claim.

p. 3
03

The counterclaim for outstanding loans

Holding

The claimant did not deny owing the sums claimed; he owes Kshs.981,057.71.

Reasoning

The claimant offered no response to the counterclaim for outstanding loan amounts. Uncontroverted, the court found the debt proved and entered judgment for the respondent.

p. 4

Legal principles established

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  • An employer discharges its obligation under Section 41 of the Employment Act by offering the employee an opportunity to be heard; if the employee declines to attend, the employer need not wait indefinitely.
  • Submissions are not pleadings and cannot be the basis for evidence on facts.
  • A litigant who sets out to mislead the court cannot earn its sympathy.

Court orders

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  1. 1.The claim is dismissed
  2. 2.Judgment entered in favour of the respondent in terms of the counterclaim in the sum of Kshs.981,057.71/=
  3. 3.No orders for costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(4)(g)
  • SACCO regulationsthree-month limit on disciplinary proceedings (referred to by claimant)

Cases cited (2)

  • ALFRED OMOMBO -V- LAKE VICTORIA NORTH WATER SERVICES BOARD AND ANOTHER
  • HUMPHREY AYIRO ONGAYA -V- MASINDE MULIRO UNIVERSITY OF SCIENCE AND TECHNOLOGY
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (specific provision not stated in the judgment)

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, "Robert Mofat Odhiambo v Harambee Sacco Limited [2018] KEELRC 1258 (KLR)", Case Analysis (2018). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1258/eng@2018-08-17

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