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ELRCDismissedCause No. 191 of 2015· [2018] KEELRC 1743 (KLR)

Stephen Nyalenda Aduol v Timber Treatment International Limited [2018] KEELRC 1743 (KLR)

Employment and Labour Relations Court of Kenya
12 June 2018
DMD. K. Njagi Marete
3,416 words in judgment
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The bottom line

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Kenya's Employment Court upheld a summary dismissal for suspected theft, confirming that strong employer evidence defeats claims of unfair termination.

What this practically means

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Executive summary

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The claimant, employed by the respondent as an Assistant Forester from early 2014, was summarily dismissed on 18th June 2015 following the theft of electricity poles at James Teko's Farm in Murkwijit, West Pokot, on 11th June 2015. He claimed the dismissal was unlawful, unprocedural and unfair, alleging he was never issued a show cause letter, never accorded a hearing, that no evidence of the alleged theft or investigation was availed, and that no police report or criminal charges were made. He sought a declaration of unfair termination, compensation for breach of contract, maximum 12 months' compensation under section 49(c) of the Employment Act and section 15 of the Labour Institutions Act, a certificate of service, costs and interest, quantified at Kshs.2,000,750. The respondent denied the claim, asserting the dismissal followed incidences at Teko's Farm, that a show cause letter was served on 16th June 2015 and a hearing held on 17th June 2015 at which the claimant admitted receiving proceeds of the poles, relying on section 44 of the Employment Act on summary dismissal for suspected criminal offence against the employer's property. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. It found the claimant's denial of receipt of the show cause letter a mere denial, contradicted by his team members' show cause responses and letters of apology implicating him. The court held the termination lawful, found the claimant not entitled to the relief sought, dismissed the claim, and ordered each party to bear their own costs. Judgment was delivered on 12th June 2018 by D. K. Njagi Marete, J.

Key legal issues

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01

Whether the summary dismissal of the claimant was wrongful, unfair and unlawful

Holding

The dismissal was lawful; the court found the claimant's denial of receipt of the show cause letter a mere denial, contradicted by his team members' responses to show cause letters implicating him in the theft of poles.

Reasoning

The respondent relied on section 44 of the Employment Act permitting summary dismissal, including where an employee on reasonable and sufficient grounds is suspected of having committed a criminal offence against the employer's property. The respondent produced a show cause letter, the claimant's reply, statements recorded on 15th June 2015 implicating the claimant, and letters of apology from team members implicating him. The court found the claimant's evidence unrealistic and inconsistent, and found a case of lawful termination.

p. 6
02

Whether the claimant is entitled to the relief sought

Holding

The claimant is not entitled to any relief, having failed to prove unfair termination.

Reasoning

Entitlement to the remedies under sections 49 and 51 of the Employment Act and section 15 of the Labour Institutions Act was predicated on a finding of unlawful termination. Since the court found the termination lawful, all heads of claim — compensation, notice pay, leave, service pay, certificate of service and loss of earnings — fell away, and the claim was dismissed in its entirety.

p. 7

Legal principles established

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  • Where the claimant fails to establish unfair termination, he is not entitled to the relief sought.

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party bears their own costs of the claim

Authorities

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Legislation

  • Employment Act, 2007section 45(1), (2), (4)
  • Employment Act, 2007section 41(1), (2)
  • Employment Act, 2007section 43(1)
  • Employment Act, 2007sections 35(1)(c), 36
  • Employment Act, 2007section 44 (including 44(3), (4) and 44(g))
  • Employment Act, 2007sections 15, 46, 47, 49(c), 51, 87
  • Labour Institutions Actsection 15
  • Constitution of KenyaArticles 41 and 77

Cases cited (2)

  • Walter Ogal Onuro vs. Teachers Service Commission
    (2013) eKLR
  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    (2013) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause No. 191 of 2015, ELRC at Kericho)

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, "Stephen Nyalenda Aduol v Timber Treatment International Limited [2018] KEELRC 1743 (KLR)", Case Analysis (2018). Cause No. 191 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1743/eng@2018-06-12

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