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ELRCDismissedNot stated in the extract· [2019] KEELRC 250 (KLR)

Samuel Ochieng Lango v Maya Duty Free Limited [2019] KEELRC 250 (KLR)

Employment and Labour Relations Court
29 November 2019
BOByram Ongaya
718 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court upheld a salesman's dismissal because he admitted taking a customer's money, and rejected his older wage claims as filed too late.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a salesman at its JKIA shop, sued for unpaid wages, terminal dues, general damages for unfair and unlawful termination, unpaid leave allowance for 8 years, underpayment of wages from 2003 to 2011, and six months' salary in lieu of notice. The respondent denied the claims and sought dismissal with costs. The suit proceeded by way of pleadings, documents and final submissions, with no witnesses called. The Court found the employment relationship undisputed. On termination, the Court held that a customer had forgotten a pouch containing money at the shop in March 2011; CCTV footage confirmed the claimant shared the contents with a colleague, and the claimant wrote a statement admitting he took USD500 and had used USD300. His admission established culpability, and as he was heard and admitted the misconduct, he could not allege denial of notice or hearing under section 41 of the Employment Act, 2007. The dismissal was therefore valid and not unfair under sections 43 and 45, and the claimant's prior warnings under section 49 further mitigated against compensation. The claims for underpayment and leave pay for 8 years were continuing injuries that ceased in March 2011 and were time-barred under section 90, the suit having been filed on 23.11.2012, beyond the 12-month period. The claim for six months' salary in lieu of notice failed for lack of evidence, and gross misconduct entitled summary dismissal with a lesser notice. The memorandum of claim as amended was dismissed with costs to the respondent on 29 November 2019.

Key legal issues

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01

Validity and fairness of the termination

Holding

Termination was for a genuine and fair reason under sections 43 and 45 of the Employment Act; the claimant admitted sharing a customer's forgotten money, and was heard, so the dismissal was valid and not unfair

Reasoning

A customer forgot a pouch containing money; CCTV confirmed the claimant shared the contents with a colleague. The claimant wrote a statement admitting the misconduct and returning part of the money. His admission established culpability, and having been heard, he could not allege denial of notice or hearing. Prior warnings also mitigated against any compensation under section 49.

p. 1
02

Limitation of underpayment and leave pay claims

Holding

The claims for 8 years' underpayment and leave pay were continuing injuries that ceased in March 2011 and were time-barred under section 90 of the Employment Act

Reasoning

The suit was filed on 23.11.2012, more than 12 months after the alleged continuing injuries ceased in March 2011. Section 90 bars such claims brought beyond 12 months. No evidence or submissions supported the claim for six months' salary in lieu of notice, and gross misconduct entitled summary dismissal.

p. 2

Legal principles established

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  • An employee who admits misconduct and is heard cannot claim denial of notice and hearing under section 41 of the Employment Act
  • A dirty employment record with prior warnings is a mitigating factor against compensation under section 49

Court orders

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  1. 1.Judgment entered for dismissal of the claimant's memorandum of claim as amended
  2. 2.Costs in favour of the respondent

Authorities

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Legislation

  • Regulation of Wages and Conditions of Employment ActNot specified
  • Employment Act, 2007Sections 41, 43, 45, 49, 90
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Labour Relations Act jurisdiction not expressly quoted)

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, "Samuel Ochieng Lango v Maya Duty Free Limited [2019] KEELRC 250 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/250/eng@2019-11-29

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