Jacob Juma Makokha v Radar Security (K) Limited [2018] KEELRC 2577 (KLR)
The bottom line
#Even an employee caught stealing must be given a fair hearing before dismissal, so the Kenyan court awarded him notice and leave pay but no compensation.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in unfair termination
The claimant discharged his burden under section 47(5) by laying the basis for his claim, shifting the burden to the employer to justify the grounds for termination
The claimant denied the reasons given for his dismissal and laid the basis for his claim, discharging his obligation under section 47(5). This brought into play sections 43(1) and 47(5), placing the burden on the employer to prove the alleged reasons and justify the grounds for termination.
Procedural fairness despite gross misconduct
Although the claimant was caught stealing scrap metal, the respondent failed to follow section 41 because it left the claimant at large without recalling him for disciplinary action
The respondent's witnesses' evidence that the claimant was caught with scrap metal was unchallenged and taken as true. However, where the respondent had the claimant's written contract with his address, it was required to recall him for disciplinary action. Leaving him at large failed to meet the section 41 threshold, rendering termination unprocedural.
No compensation for gross misconduct
No compensation awarded because the theft constituted gross misconduct destroying trust and confidence
A security guard entrusted with guarding property who engages in acts contrary to that duty loses the trust and confidence of the client and employer. Section 45(5)(b) requires the employee's conduct up to termination to be considered; awarding compensation would reward gross misconduct and offend the interests of justice.
Overtime claim
The claimant's computation was erroneous and contradictory, but the respondent failed to produce work records; overtime to be computed from the respondent's records upon the claimant's clearance
The claimant testified he worked 12 hours a day with one rest day per week, making the 7-day computation erroneous and contradictory. The respondent did not submit work records, which would have allowed a proper assessment. The court ordered computation based on the records held by the respondent within 30 days and upon clearance.
Legal principles established
#- The burden of proving that an unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer
- An employer who suspects an employee of theft may summarily dismiss under section 44(4), but internal disciplinary proceedings differ from criminal trials and require only that the employee be reasonably given a hearing
- Failure to recall an employee for disciplinary action, leaving him at large, defeats the employer's compliance with section 41 of the Employment Act
- In awarding remedies under section 49, the employee's conduct up to the date of termination is material
Court orders
#- 1.Notice pay awarded at Kshs. 16,277.00
- 2.Leave pay awarded at Kshs. 4,667.00
- 3.Overtime payments to be computed based on the work records held by the respondent and paid within 30 days from the date of judgment, upon the claimant undertaking clearance with the respondent
- 4.Each party shall pay own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wangui v Unaitas Sacco Limited (Cause 1716 of 2017) [2023] KEELRC 2022 (KLR)[2023] KEELRC 2022 (KLR)31 Jul 2023
- Muchiri v Netco Management Limited (Cause 233 of 2016) [2022] KEELRC 1204 (KLR)[2022] KEELRC 1204 (KLR)27 May 2022
- Naomy Osiemo v Geoffrey Nyang’au t/a Mavuno Mini Supermarket [2020] KEELRC 1407 (KLR)[2020] KEELRC 1407 (KLR)13 Mar 2020
Cite this brief
#Cite this brief
Caselaw, "Jacob Juma Makokha v Radar Security (K) Limited [2018] KEELRC 2577 (KLR)", Case Analysis (2018). Cause No. 74 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2577/eng@2018-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.