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ELRCDismissedCause No. 54 of 2017· [2018] KEELRC 1655 (KLR)

Willy Kiprotich Ng’eno v Kenya Tea Development Authority [2018] KEELRC 1655 (KLR)

Employment and Labour Relations Court of Kenya
26 June 2018
DMD. K. Njagi Marete
2,495 words in judgment
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The bottom line

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Kenya's Employment Court ruled an employer lawfully dismissed a clerk who failed to bank Kshs.75,500 from company sales, and ordered him to repay it.

What this practically means

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Executive summary

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The claimant, a Factory Clerk (later Factory Chief Clerk) employed by the respondent from around 1998/2003 on permanent and pensionable terms, sued for unfair and wrongful termination after his dismissal on 14th July, 2016. He alleged he was charged with gross misconduct over money said to be missing from a cash box he inherited from a workmate, Caroline Cheptoo, who proceeded on maternity leave without a proper handover; that a disciplinary committee on 9th March, 2016 heard him; that the workers union recommended reinstatement, but he was dismissed instead. He sought reinstatement or, in the alternative, 12 months' salary, 6 months' notice and salary to age 60, plus costs. The respondent denied the claim, asserting the claimant sold company scrap metal for Kshs.509,600/=, banked only part, and left Kshs.75,500/= unbanked despite leniency to deposit it, and counter-claimed for that sum. The court framed four issues. On the evidence, including the claimant's admissions in cross-examination and his letter of 30th July, 2015 undertaking to bank the money, the court found a lawful termination and held the claimant had failed to rebut the respondent's case. The counter-claim of Kshs.75,500/= was upheld as legitimate, the claim was dismissed with costs to the respondent, and the respondent was also awarded the costs of the counter-claim. Judgment was delivered on 26th June, 2018 by D. K. Njagi Marete, J.

Key legal issues

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01

Whether the claimant's summary dismissal was wrongful, unfair and unlawful

Holding

The termination was lawful; the claimant failed to account for Kshs.75,500/= from the sale of company scrap metal, and the employer had substantive justification.

Reasoning

The claimant admitted selling scrap metal belonging to the respondent for Kshs.509,600/=, banking only part of it, and leaving Kshs.75,500/= unbanked. By a letter dated 30th July, 2015 he undertook to bank the unbanked money but failed to do so despite being given time. The respondent established a valid reason related to the claimant's conduct amounting to breach of trust, and the claimant could not rebut this in evidence and submissions.

p. 4
02

Whether the respondent is entitled to the counter-claim

Holding

Yes; the respondent is awarded Kshs.75,500.00.

Reasoning

The claimant raised Kshs.509,600/= from sale of company property, made remissions leaving a balance of Kshs.75,500/= unaccounted for, which he admitted even in oral evidence. The counter-claim was therefore a legitimate claim.

p. 4
03

Whether the claimant is entitled to the relief sought

Holding

No; the claim was dismissed.

Reasoning

Having lost on the question of unlawful termination, the claimant was not entitled to reinstatement or monetary compensation. Costs were awarded to the respondent on both the claim and the counter-claim.

p. 4

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness.
  • Under section 47(5) of the Employment Act, the employee bears the burden of proving unfair termination while the employer bears the burden of justifying the grounds for termination.
  • The employer-employee relationship is one of trust and confidence; conduct clearly inconsistent therewith entitles the innocent party to cancel the agreement.

Court orders

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  1. 1.A finding that the termination of the claimant's employment was lawful
  2. 2.The respondent is awarded Kshs.75,500.00 on the counter-claim against the claimant
  3. 3.The claim is dismissed with costs to the respondent
  4. 4.The respondent is awarded the costs of the counter-claim

Authorities

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Legislation

  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 45(1) and (2)
  • Employment Act, 2007section 41(1)
  • Employment Act, 2007section 44(4)

Cases cited (4)

  • Walter Ogal Anuro Vs. Teachers Service Commission
    (2013) eKLR
  • Donald Odeke V Fidelity Security Limited
    [2012] eKLR
  • Francis Nyongesa Kweyu vs Eldoret Water Sanitation Company Limited
    [2017] eKLR
  • Judicial Service Commission vs Gladys Boss Shollei & Another
    Civil Appeal No. 50 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim and counter-claim)

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, "Willy Kiprotich Ng’eno v Kenya Tea Development Authority [2018] KEELRC 1655 (KLR)", Case Analysis (2018). Cause No. 54 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1655/eng@2018-06-26

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