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ELRCDismissedCause No. 123 of 2016· [2019] KEELRC 306 (KLR)

Nancy Njoroge v Flamingo Hill Camp Ltd [2019] KEELRC 306 (KLR)

Employment and Labour Relations Court of Kenya
14 November 2019
MMM. Mbaru
1,880 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 was employed by the respondent hotel from 1 July 2006, rising to the position of housekeeper. Following a complaint by a guest who lost Ksh.20,000 from his tent on 24 December 2015 while the claimant was on duty, and given similar prior incidents in 2014, the claimant was issued a notice to show cause, replied on 1 January 2016, and was summarily dismissed on the same date under section 44(4)(g) of the Employment Act, 2007. She claimed unpaid leave allowances of Ksh.18,271, overtime of Ksh.271,940.64, compensation of Ksh.219,252 for unfair termination, and payment for 5 off days not taken, alleging she was denied due process under sections 41, 43 and 45. The respondent, through its camp manager Mr Job Leboo, maintained the dismissal was lawful, that all terminal dues were paid, that hours did not attract overtime, and that terminal dues were lawfully applied to the claimant's Kentours Sacco loan under a memorandum of understanding. The court held that even where gross misconduct justifies summary dismissal, a hearing under section 41(2) is required, but found the claimant was allowed to respond and her defence was found unsatisfactory. The work records showed prior incidents supporting substantive justification under section 45(5). The overtime claims were found general, made as an afterthought, and unsupported by the claimant's own evidence, and leave and off-day dues had been paid. Applying Javan Were Mbango v H. Young & Co. (EA) Ltd, the court held section 19 obliged the employer to apply terminal dues to offset the Sacco loan deficit. The entire claim was dismissed with each party bearing own costs.

Key legal issues

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01

Fairness of summary dismissal for gross misconduct

Holding

The summary dismissal was both substantively and procedurally fair; the claimant was issued a notice to show cause, replied, and her representations were considered before dismissal under section 44(4)(g)

Reasoning

The court held that while summary dismissal is permitted under section 44 where there is fundamental breach or gross misconduct, due process under section 41(2) still requires a hearing. Here the claimant was issued a notice to show cause, replied on 1 January 2016, and her defence was considered and found unsatisfactory. The respondent also produced records of prior incidents of theft and insubordination supporting substantive justification under section 45(5).

p. 2
02

Overtime pay claim

Holding

The overtime claim failed as it was general, made as an afterthought, and unsupported by the claimant's own evidence

Reasoning

The claimant sought 9 hours of overtime per week over ten years in a general standard format without accounting for leave taken. She admitted one housekeeper was left in the evenings on rotation, showing hours were synchronised to avoid overtime. Unchallenged evidence showed overtime was compensated with time off on full pay when business was low. The claimant only claimed leave for 2015, which had been paid.

p. 3
03

Application of terminal dues to a Sacco loan

Holding

The employer was legally obliged under section 19 of the Employment Act to apply terminal dues to offset the claimant's unpaid Sacco loan

Reasoning

The claimant had an unpaid loan of Ksh.164,000 with Kentours Sacco against shares of Ksh.128,000, leaving a deficit. Relying on section 19 of the Employment Act and the Javan Were Mbango authority, the court held that employees who join a Sacco and enjoy loan facilities authorise deductions, and the employer had a duty to apply terminal dues to offset the loan at the end of employment.

p. 3

Legal principles established

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  • Even where an employer has grounds for summary dismissal for gross misconduct, the employee must be afforded a hearing in accordance with section 41(2) of the Employment Act
  • Where an employee joins a Sacco by virtue of employment and enjoys a loan facility, the employer is entitled in law to apply terminal dues to offset the loan debt at the end of employment under section 19 of the Employment Act

Court orders

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  1. 1.The claims made are found without merit and are dismissed
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 41 (including section 41(2))
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44 (including section 44(3), 44(4) and 44(4)(g))
  • Employment Act, 2007section 45 (including section 45(5))
  • Employment Act, 2007section 19

Cases cited (1)

  • JAVAN WERE MBANGO Versus H. YOUNG & CO. (EA) LTD
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment cause under section 41, 43, 44 and 45)

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 Njoroge v Flamingo Hill Camp Ltd [2019] KEELRC 306 (KLR)", Case Analysis (2019). Cause No. 123 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/306/eng@2019-11-14

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