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ELRCPartially AllowedNot stated in the judgment (Memorandum of Claim filed 3rd June 2015)· [2019] KEELRC 440 (KLR)

Titus Wambua Mwendwa v Elsa’s Kopje Limited [2019] KEELRC 440 (KLR)

Employment and Labour Relations Court
15 October 2019
HWHellen Wasilwa
1,811 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a lodge steward's dismissal was unfair because demanding an apology from a guest is not gross misconduct, awarding him Kshs. 238,380.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a room steward in its Meru camp lodge earning Kshs. 18,350 per month, was summarily dismissed on 21st April 2015 following an incident in which a guest reported a loss of USD 700 in November 2014. The allegation was later retracted after the money was found, and the Claimant, through his advocates, demanded an apology from the guest. The Respondent suspended him, issued a notice to show cause, and subsequently dismissed him for improper conduct in communicating with guests on matters not raised with management. The Claimant sued for one month's notice pay, service pay for two years, maximum compensation for unfair termination, and general damages for discrimination and indignity. The Respondent admitted the engagement but asserted the dismissal was for gross misconduct, that due process was followed, and that all dues were paid upon signing a discharge. The parties proceeded by written submissions. The court found that although the Claimant was given a fair hearing through a documented disciplinary process, the Respondent failed to prove a valid reason for termination as required under Sections 43 and 44(4) of the Employment Act. The court held that demanding an apology from a guest who had branded him a thief could not amount to gross misconduct justifying summary dismissal. The dismissal was accordingly found unjustified. The court awarded the Claimant one month's salary in lieu of notice (Kshs. 18,350) and maximum compensation of twelve months' salary (Kshs. 220,000), totalling Kshs. 238,380, with costs and interest. The claims for service pay and general damages were not addressed in the final award.

Key legal issues

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01

Whether the summary dismissal of the Claimant was justified

Holding

The dismissal was unjustified; no valid reasons existed warranting summary dismissal.

Reasoning

The court examined the grounds in Section 44(4) of the Employment Act which enumerate matters amounting to gross misconduct. The Claimant's conduct — instructing counsel to demand an apology from a guest who had referred to him as a thief — did not fall within any of the enumerated grounds. The court thus found the Respondent failed to prove valid reasons under Section 43, rendering the summary dismissal unjustified and unfair.

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02

Whether the Claimant was accorded a fair hearing before termination

Holding

Yes; the Respondent's documents showed the Claimant was taken through a disciplinary process and given a fair hearing.

Reasoning

The Claimant contended that he was not subjected to any disciplinary hearing before his dismissal. However, the court examined the Respondent's documents, including minutes of the disciplinary process, and found that the Claimant was actually taken through a disciplinary process. The court concluded that the Claimant was given a fair hearing before the termination, so procedural fairness was satisfied.

p. 2

Legal principles established

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  • An employer bears the burden of proving valid reasons for termination; failing which the termination is unfair under Section 45 of the Employment Act
  • Demanding an apology from a guest who branded the employee a thief does not amount to gross misconduct justifying summary dismissal

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Kshs. 18,350/=.
  2. 2.Maximum compensation equivalent to 12 months' salary for the unjustified termination, Kshs. 220,000/=, making a total of Kshs. 238,380/=.
  3. 3.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment.

Authorities

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Legislation

  • Employment ActSections 41, 42, 43 and 46(h)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45

Cases cited (3)

  • Angela Wokabi Muoki Vs Tribe Hotel Limited
    (2016) eKLR
  • Evans Kamadi Misango Vs Barclays Bank of Kenya Limited
    (2015) eKLR
  • John Otieno Mukabi Vs Kenya Builders & Concrete Company Limited
    (2014) eKLR
Jurisdiction invoked
First-instance employment and labour relations claim under the Employment Act, 2007

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, "Titus Wambua Mwendwa v Elsa’s Kopje Limited [2019] KEELRC 440 (KLR)", Case Analysis (2019). Not stated in the judgment (Memorandum of Claim filed 3rd June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/440/eng@2019-10-15

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