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ELRCAllowedCause Number 2154 of 2012· [2018] KEELRC 2265 (KLR)

Nancy Adisa Adagi v Crown Clothing (K) Ltd [2018] KEELRC 2265 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
9 February 2018
ANAbuodha J. N.
1,002 words in judgment
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The bottom line

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A Kenyan court ruled a machinist was unfairly fired over theft allegations based only on a colleague's word, awarding her full compensation and costs.

What this practically means

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Executive summary

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The claimant, employed as a machinist from 15th September 2003 at a monthly salary of about Kshs 8,660, sued her employer, Crown Clothing (K) Ltd, alleging that her dismissal on 29th June 2012 for alleged attempted theft of clothing material was without just cause and without due process. She asserted the theft allegation was fabricated and backdated, and that the stolen items were actually found with her colleague, Nathan. The respondent maintained that the claimant bagged company goods and handed them to Nathan, that she admitted the offence at a meeting attended by union representatives (a shop steward and an assistant shop steward) though she refused to sign the admission letter, and that the union and the company agreed she be paid her terminal dues. In oral evidence the claimant denied signing any admission and denied receiving a dismissal letter. The respondent's witnesses, including the shop steward, supported the account of an admission and refusal to sign. The court held that termination must be for a valid and justifiable reason, and that the burden of proving the reason for dismissal rests on the employer on a balance of probabilities under Sections 43(1) and 47(5) of the Employment Act. The only evidence was Nathan's word against the claimant's; Nathan, who signed the admission and was not dismissed, was never called as a witness, and there was no corroborative evidence implicating the claimant. The court found the termination unfair under Section 45(1) of the Employment Act and awarded the claimant two months' salary in lieu of notice (Kshs 18,023.20), 19 days' leave pay (Kshs 8,153.35), ten months' salary as compensation for unfair termination (Kshs 90,116), totalling Kshs 116,293.00, plus costs and a certificate of service, with the monetary awards subject to taxes and statutory deductions. Judgment was delivered by Abuodha J. N. on 9th February 2018.

Key legal issues

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01

Whether the termination was for a valid and justifiable reason under Section 43(1) and 47(5) of the Employment Act

Holding

The evidence supporting dismissal (a colleague's word against the claimant's denial) was insufficient proof of the reason for dismissal

Reasoning

The claimant was dismissed for allegedly attempting to steal clothing material, based solely on her implication by Nathan, who was found with the items. The claimant denied involvement and refused to sign an admission, while Nathan signed and was not dismissed. The employer called no corroborative evidence, and Nathan was never called as a witness. Under Sections 43(1) and 47(5) of the Employment Act, the burden of justifying dismissal rests on the employer on a balance of probabilities, which was not met.

p. 2
02

Whether the termination was unfair under Section 45(1) of the Employment Act

Holding

The termination was unfair; judgment entered for the claimant

Reasoning

Having found no valid and justifiable reason for the dismissal, and noting that the colleague actually found with the items signed the admission letter and was not dismissed while the claimant refused and was dismissed, the court concluded that the claimant's services were terminated unfairly within the meaning of Section 45(1) of the Employment Act, entitling her to notice pay, leave pay, compensation and a certificate of service.

p. 2

Legal principles established

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  • Termination of employment must be for a valid and justifiable reason
  • The burden of proving the reason for dismissal lies on the employer, on a balance of probabilities
  • An employer must provide corroborative evidence implicating an employee where termination is based on implication by a colleague

Court orders

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  1. 1.Judgment entered against the respondent in favour of the claimant
  2. 2.Two months' salary in lieu of notice of Kshs 18,023.20
  3. 3.19 days pay in lieu of leave of Kshs 8,153.35
  4. 4.Ten months' salary as compensation for unfair termination of services of Kshs 90,116, totalling Kshs 116,293.00
  5. 5.Items (a) to (c) shall be subject to taxes and statutory deductions
  6. 6.Claimant to be issued with a certificate of service
  7. 7.Costs of the suit awarded to the claimant

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 47(5)
  • Employment ActSection 45(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act)

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, "Nancy Adisa Adagi v Crown Clothing (K) Ltd [2018] KEELRC 2265 (KLR)", Case Analysis (2018). Cause Number 2154 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2265/eng@2018-02-09

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