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ELRCPartially AllowedPetition dated 10th March 2017 / Statements of Claim dated 22nd January 2019 and 11th February 2019· [2019] KEELRC 48 (KLR)

Ondicho Meshack Rakamba v Kuldip Singh & 4 others [2019] KEELRC 48 (KLR)

Employment and Labour Relations Court
29 November 2019
3,886 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, formerly Head Teacher of the 5th Respondent school, was dismissed on 15th November 2013 after accusations that he stole Kshs.497,800 in examination registration fees and forged a receipt. He was arrested, charged in criminal case Cr 1890/13 and acquitted on 19th September 2016. He originally petitioned against four school officials and, with the court's leave, added the school as 5th Defendant. The court deemed the Petition a Claim. The Respondents argued the claim disclosed no cause of action against the individual officers, that the dismissal was lawful summary dismissal for gross misconduct under section 44 of the Employment Act, and that the court lacked jurisdiction over malicious prosecution. The court framed three issues: proper joinder of the 1st to 4th Respondents, procedural fairness of the dismissal, and entitlement to reliefs. It held the individual Respondents were properly sued as agents of the employer. On procedure, it found the school summarily dismissed the Claimant without notice, hearing or opportunity to respond, contrary to section 41, rendering the dismissal unprocedural and unfair. The court awarded notice pay of Kshs.16,500, maximum compensation of Kshs.198,000 under section 49(4) considering 10 years' service, refund of Kshs.47,000 owed, Kshs.5,000 for unreturned personal items, costs of Kshs.50,000 and a certificate of service. Claims for post-dismissal salary, overtime, PAYE refunds, contractual honor, cash bail refund, medical costs, punitive damages and criminal trial fees failed for want of proof or lack of legal basis.

Key legal issues

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01

Whether the 1st to 4th Respondents, being employees of the 5th Respondent, were properly sued

Holding

They were properly sued as agents of the 5th Respondent who contributed to the incidents leading to the Claimant's dismissal

Reasoning

The court applied Makau J's reasoning in Kenya Hotels that an employer includes agents and managers under section 2 of the repealed Employment Act, and the Court of Appeal's test in Mombasa Bricks & Tiles that a party is properly joined if their presence is necessary to determine the real issues. The 1st to 4th Respondents, as Director, Inspector, Auditor and Accountant, were agents whose actions led to the dismissal.

p. 4
02

Whether the 5th Respondent followed due procedure before terminating the Claimant's employment

Holding

The dismissal was unprocedural; the employer did not comply with section 41 of the Employment Act before summary dismissal under section 44

Reasoning

Section 44 permits summary dismissal for gross misconduct, but section 41 requires compliance with procedure before summary dismissal. The 5th Respondent did not rebut the Claimant's averments that it summarily dismissed him without notice, without a disciplinary hearing and without an opportunity to defend himself. Following Donald Odeke v Fidelity Security Ltd, an unheard employee's termination is ipso facto unfair.

p. 5
03

What reliefs the Claimant is entitled to

Holding

Notice pay, maximum compensation of 12 months' salary under section 49(4), certificate of service, and refund of Kshs.47,000 and Kshs.5,000 for personal items; other claims failed for want of proof

Reasoning

Guided by section 49(4), and considering 10 years of service, the circumstances of termination and pay of Kshs.16,500, the court awarded maximum compensation. Certificate of service flows from section 51 of the Employment Act. Overtime and PAYE claims, the contractual honor, cash bail refund, medical costs, punitive damages and criminal trial costs were not proved, and salary post-dismissal is not provided for in law or contract.

p. 5

Legal principles established

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  • Before summary dismissal under section 44(4) of the Employment Act, the employer must comply with the procedure in section 41, including notice and a hearing; failure to hear an employee renders termination ipso facto unfair
  • An agent, foreman, manager or factor of an employer is, by the definition of 'employer' in the repealed Employment Act, properly suable alongside the principal for obligations under an employment contract

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondents as follows: (1) Notice Kshs.16,500; (2) Compensation Kshs.198,000; (3) Refund of Kshs.47,000 owed to the claimant; (4) Kshs.5,000 being value of claimant's property left in respondent's office; (5) Costs of Kshs.50,000; total Kshs.316,500.00; (6) Certificate of service
  2. 2.All prayers not proved dismissed
  3. 3.Costs assessed at Kshs.50,000 to cover reasonable disbursements and incidental expenses of the suit

Authorities

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Legislation

  • Employment Actsections 41, 43, 44, 45, 49(4), 51
  • Employment Act Cap 226 (repealed)section 2 (definition of employer)

Cases cited (7)

  • Barasa Paul Isaac vs. X for Security Solutions (Ke) Ltd
    [2015] eKLR
  • Fred A. Odhiambo –v- Attorney General & another
    [2013] eKLR
  • Mary Chemwono Kiptui –v- Kenya Pipeline Company Limited
    [2014] eKLR
  • Bamburi Cement Ltd –v- William Kilonzi
    Civil Appeal No. 62 of 2015
  • Kenya Hotels And Allied Workers Union –v- Well-Come Inn Hotels T/A Malindi Investments Ltd & Another
    [2015] eKLR
  • Mombasa Bricks & Tiles Ltd & 5 others v Arvind Shah & 7 others
    [2019] eKLR
  • Donald Odeke –v- Fidelity Security Ltd
    Cause No.1998 of 2011
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over employment disputes; the Petition was deemed a Claim by the court on 13th November 2018

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ondicho Meshack Rakamba v Kuldip Singh & 4 others [2019] KEELRC 48 (KLR)", Case Analysis (2019). Petition dated 10th March 2017 / Statements of Claim dated 22nd January 2019 and 11th February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/48/eng@2019-11-29

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