Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowednot stated in the judgment extract· [2018] KEELRC 2363 (KLR)

Wycliffe Magomere v Sankara Nairobi [2018] KEELRC 2363 (KLR)

Employment and Labour Relations Court
19 January 2018
NMNzioki wa MakauRSRadido Stephen
4,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan court upheld a storekeeper's summary dismissal because he skipped inventory procedure after repeated warnings, but ordered payment of unpaid dues.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent hotel as a storekeeper from July 2010, was summarily dismissed in June 2013 for receiving printing and stationery items from a supplier and issuing them to user departments without entering them into the materials control system, thereby exposing accountable documents (food and beverage bills) to risk. He had received three prior written warnings on related issues. He sued for one year's compensation, two months' notice pay and the June salary, contending the dismissal was unfair because the termination letter predated the disciplinary hearing, his shop steward was not allowed to defend him, and the purchasing manager had instructed him to collect the goods without an LPO. The Respondent maintained there was a valid reason and due process was followed, and that terminal dues were paid. The court found the Respondent accorded the Claimant the Section 41 procedural safeguards and noted that the Claimant's hand-written explanation never mentioned any instruction to skip procedure. The court held the Claimant authored his own dismissal by failing to key in the items, with prior warnings aggravating the position. The claim therefore fell for dismissal, save that on perusing the payment records the court found the June salary component of Kshs. 27,123.50 had not been paid, and ordered the Respondent to pay that sum within 14 days of judgment. Each party was to bear its own costs. Judgment dated 9th January 2018 and delivered at Nairobi on 19th January 2018.

Key legal issues

#
01

Whether the summary dismissal complied with Section 41 of the Employment Act (procedure)

Holding

The Respondent accorded the Claimant the procedural safeguards under Section 41; the dismissal was procedurally fair.

Reasoning

The Claimant was notified of the disciplinary meeting, attended it with union representation, gave a written explanation and his explanations were considered. The court found the procedural safeguards of Section 41 were met. The Claimant's claim that the shop steward was not allowed to ask questions was not established as the court found the Respondent accorded him the procedural safeguards.

p. 4
02

Whether there was a valid reason for the summary dismissal (gross misconduct)

Holding

The dismissal was substantively justified: the Claimant received goods from a supplier and issued them without recording them in the materials control system, and had three prior warnings on related issues.

Reasoning

The court found the Claimant failed to key in the items he collected into the system, had received three written warnings, and did not mention in his written explanation that he was instructed by the purchasing manager to skip procedure. The Respondent viewed the conduct as gross misconduct and could not rule out fraud given the final warning. The dismissal was therefore justified.

p. 4
03

Whether the Claimant was entitled to remedies under Sections 45 and 49 of the Employment Act

Holding

The claim for compensation and notice pay failed, but the court found the June salary/service charge component of Kshs. 27,123.50 was not paid and ordered its payment.

Reasoning

Although dues were processed on termination, perusal of the payment records showed only the service charge was computed in the final dues and the sum of Kshs. 27,123.50 was not paid. The court ordered the Respondent to pay that sum within 14 days, being the only relief granted.

p. 4

Legal principles established

#
  • Before terminating employment on grounds of misconduct, an employer must explain the reasons to the employee and hear and consider any representations made by the employee and a chosen representative.

Court orders

#
  1. 1.The suit otherwise falls for dismissal
  2. 2.The Respondent to pay the Claimant Kshs. 27,123.50 (unpaid June salary/service charge component) within 14 days of the judgment
  3. 3.Each party to bear their own costs

Authorities

#

Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 41
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 49
  • Employment ActSection 42(1)

Cases cited (5)

  • Fulgence Sunza Masai v Kenya Revenue Authority
    [2014] eKLR
  • Bornventure Munavi Kabbis v Bob Morgan Services (also referred to as BM Security)
    [2014] eKLR
  • Kinley v B.C. Tel
    [2001] S.C.R 161
  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2014] eKLR
  • Alphonce Machanga Mwachanya v Operation 680 Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim for unfair termination under the Employment Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wycliffe Magomere v Sankara Nairobi [2018] KEELRC 2363 (KLR)", Case Analysis (2018). not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2363/eng@2018-01-09

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