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ELRCDismissedNot stated in the judgment· [2018] KEELRC 1295 (KLR)

Ambrose Mutua Munyasya v Ukulima Co-operative Savings and Credit Society Limited [2018] KEELRC 1295 (KLR)

Employment and Labour Relations Court
31 July 2018
MOMAUREEN ONYANGO
1,557 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan bank employee's unfair dismissal claim failed because he raised his main complaint too late and wasn't owed service pay.

What this practically means

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Executive summary

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The claimant, employed by the respondent bank as an Accounts Assistant in 1995 and serving as Accountant at the Kisumu Branch, was left in charge of the branch on 7th May 2010 when the Branch Manager travelled. He failed to sign the daily books that day and did not report to work on Monday 10th May 2010, when a shortage of Kshs.20,000 was discovered. After show-cause correspondence, an explanation exchange and a hearing before the Staff Management Committee on 13th November 2010, his employment was terminated on 17th November 2010 for gross misconduct arising from improper performance of duties. He sued, seeking a declaration that the dismissal was wrongful, unlawful and malicious, terminal dues of Kshs.1,434,305.75, general damages, interest and costs. In submissions he argued the termination was procedurally unfair because no union representative or fellow employee accompanied him at the disciplinary hearing. The court held that this complaint was raised for the first time in submissions, not at the hearing or in the memorandum of claim, and could not be raised through written submissions; it was therefore never proved. The court found valid reason for the termination and a fair hearing, holding the termination fair and procedural. On remedies, service pay was refused as the claimant was excluded by Section 35(6) of the Employment Act, being a member of both NSSF and the respondent's pension scheme; notice and accrued leave had been paid and were admitted; general damages were refused. The entire claim was dismissed with each party bearing its own costs. Judgment delivered at Nairobi on 31st July 2018 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the termination complied with Sections 41, 43 and 45(2) of the Employment Act

Holding

The termination was fair and procedural; the claimant was given opportunity to explain twice, a show-cause letter and a disciplinary hearing, and admitted the charges

Reasoning

The claimant was asked to explain, given a second opportunity, issued a show-cause letter and invited to a disciplinary hearing. The allegation that he was denied representation by a union official or fellow employee was raised for the first time in submissions, not at the hearing or in the memorandum of claim, and was therefore never proved. Valid reason for termination existed as admitted by the claimant.

p. 2
02

Whether the claimant was entitled to service pay

Holding

Not entitled, being excluded under Section 35(6) of the Employment Act

Reasoning

The claimant was a member of both NSSF and the respondent's staff pension scheme, excluding him from service pay under Section 35(6). The authority relied on (Tunui v Ngara Opticians) was distinguishable as it involved erratic NSSF contributions, and the claimant did not raise service pay in his evidence.

p. 3

Legal principles established

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  • A party cannot raise a fresh issue through written submissions; issues not raised at the hearing or in the pleadings and not proved cannot found a claim
  • An employee who is a member of both NSSF and an employer's pension scheme is excluded from entitlement to service pay under Section 35(6) of the Employment Act

Court orders

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  1. 1.The entire claim is dismissed in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(2)
  • Employment ActSection 35(6)
  • Employment ActSection 45

Cases cited (7)

  • WALTER OGAL ANURO
  • MOSES KAUNDA MORO VS. CMC MOTORS GROUP LIMITED
    Industrial Cause No. 192 of 2013
  • METAH MZEE VS. SDV TRANSAMI T/A BOLLORE AFRICA LOGISTICS KENYA LIMITED
    Industrial Cause No. 79 of 2012
  • GENTRIX N. WANJALA -V- FORT JESUS ACADEMY
  • LOUIS ARMSTRONG OTIENO -V- MEDIAMAX NETWORK LIMITED
  • FULGENCE SUNZA MASAI V KENYA REVENUE AUTHORITY
  • ELIJAH KIPKOROS TUNUI –V- NGARA OPTICIANS T/A BRIGHT EYES LIMITED
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act; the judgment does not cite the specific constitutional or statutory jurisdictional provision

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, "Ambrose Mutua Munyasya v Ukulima Co-operative Savings and Credit Society Limited [2018] KEELRC 1295 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1295/eng@2018-07-31

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