Nyaga v Nyaga t/a Nyandarua Restaurant & Venezza Shop (Cause 263 of 2016) [2018] KEELRC 1803 (KLR)
The bottom line
#A Kenyan court ruled that even a suspected thief must get notice and a hearing before dismissal, and agreements signed in police custody are void.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was fair despite the alleged theft
The dismissal was unfair because the Respondent, though having reason to terminate for cause, failed to give notice or follow the Section 41 hearing procedure.
The court accepted the Respondent had grounds related to the alleged loss, but held that the Respondent acknowledged investigations had preceded the termination and should instead have paid a month's salary in lieu of notice and dismissed for cause. Alternatively, even where summary dismissal is justified, the Section 41 safeguards (notice, explanation, hearing) remained available and were not undertaken. The Claimant therefore proved unfair termination.
Whether the repayment agreements/admission of theft could support the counterclaim
The agreements were void, having been signed under duress while the Claimant was in police custody; the father's agreement could not bind her.
Relying on Paola Da Fano v Salim Abdalla Bakshwein and the duress principle in Hellen Wangari Wangechi v Carumera Muthoni Githua, the court found the Claimant confessed and signed a repayment agreement while in custody for three days, so the alleged admission was not freely made. The second agreement signed by her father could not bind her. No evidence of the theft itself was availed, so the counterclaim failed.
Whether the Claimant was underpaid
The Claimant was a shop assistant entitled to Kshs. 11,279.50 per month inclusive of house allowance; payment of Kshs. 8,000/- was gross underpayment.
The court found on the evidence that the Claimant handled sales at the shop and the Mpesa account, making her a shop assistant rather than a saleslady or cashier. The applicable Regulation of Wages Order for the relevant period prescribed Kshs. 11,279.50 inclusive of house allowance for a shop assistant. She was awarded the difference between that figure and her actual pay.
Legal principles established
#- An admission or repayment agreement signed while a person is in police custody is procured under duress and is void.
- Even where grounds for summary dismissal exist, the employer must still comply with the procedural safeguards under Section 41 of the Employment Act, including notice and a hearing.
Court orders
#- 1.Payment to the Claimant of the difference between her monthly pay of Kshs. 8,000/- and the prescribed wage of Kshs. 11,279.50 per month for the period of service (underpayment)
- 2.Payment of one month's salary in lieu of notice
- 3.Compensation by payment of 2 months' salary for the unfair dismissal
- 4.Dismissal of the Respondent's counterclaim
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaga v Nyaga t/a Nyandarua Restaurant & Venezza Shop (Cause 263 of 2016) [2018] KEELRC 1803 (KLR)", Case Analysis (2018). Cause No 263 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1803/eng@2018-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.