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ELRCPartially AllowedCause No. 616 of 2016· [2019] KEELRC 592 (KLR)

Mwanduka Munguti v A to Z Transporters Limited [2019] KEELRC 592 (KLR)

Employment and Labour Relations Court
11 October 2019
2,334 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, employed by the Respondent transportation company on 5 May 2013 as a Heavy Commercial Truck Driver earning Kshs. 29,220 monthly, lost two tyres from his truck along the Mombasa-Nairobi highway between Makindu and Mbui Nzao in June 2016. He claimed the middle axle dislodged and the tyres rolled off unnoticed; the Respondent contended the tyres were systematically unfastened, indicating a criminal offence against its property. After refusing to accede to an ultimatum to return the lost tyres, the Claimant was summarily dismissed on 20 June 2016. He sued for notice pay, salary for 20 days worked, service pay, overtime, 12 months' compensation for unfair termination, refund of tyre repair costs, costs and a Certificate of Service. The Court disbelieved the Claimant's account, finding his narrative about Driver Mwangi untruthful, the workshop inspection showed the tyres were systematically unfastened, and his immediate withdrawal to his rural home was inconsistent with innocence. It held the Respondent had reasonable and sufficient grounds to suspect a criminal offence, justifying summary dismissal under Section 44(4)(g) and fair termination under Sections 43 and 45 of the Employment Act 2007. Procedurally, the Shop Steward's presence at the disciplinary hearing satisfied the requirements of Section 41 given the Claimant's status as a CBA beneficiary. Only salary for 20 days worked at Kshs. 22,476 and a Certificate of Service were awarded; notice pay, compensation, overtime and service pay were refused, the latter barred by N.S.S.F. subscription. No order was made on costs, and interest was granted at 14% per annum from the date of judgment until payment in full.

Key legal issues

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01

Valid reason for summary dismissal

Holding

The Respondent had valid ground and valid reason to dismiss summarily, the tyres having been systematically unfastened rather than fallen off

Reasoning

The Court disbelieved the Claimant's account that the tyres fell off accidentally, finding his narrative about the encounter with Driver Mwangi untruthful and his withdrawal to his rural home inconsistent with innocence. Workshop inspection showed the tyres were systematically unfastened. This constituted reasonable and sufficient grounds to suspect a criminal offence against the employer's property, justifying summary dismissal under Section 44(4)(g) and termination under Sections 43 and 45.

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02

Procedural fairness under Section 41

Holding

The disciplinary process met the minimum statutory standards of fairness; the presence of the Shop Steward satisfied the employee's right to representation

Reasoning

Although the Claimant denied union membership and was not invited by letter, he attended the hearing where a Shop Steward was present. The Court held that as a beneficiary under the CBA applying to him under clause 3 of his contract, the Shop Steward represented him; he did not protest the Shop Steward's presence or demand another representative, and having attended, he could not argue lack of invitation.

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03

Terminal dues and benefits

Holding

Only salary for 20 days worked was merited; notice pay, compensation, overtime and service pay were refused

Reasoning

The dismissal being fair, compensation and notice pay were unavailable. Overtime was unproven, and service pay was barred by the Claimant's active N.S.S.F. subscription evidenced by pay slips and statements for 2014-2016. The Claimant worked up to 20 June 2016 and thus merited salary for 20 days worked, which the Court quantified at Kshs. 22,476.

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Legal principles established

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  • An employer may summarily dismiss an employee on reasonable and sufficient grounds to suspect the employee has committed a criminal offence against the employer's property, under Section 44(4)(g) of the Employment Act
  • A Shop Steward's attendance at a disciplinary hearing satisfies the representational requirement of Section 41 where the employee is a beneficiary under the CBA, even if not a paid-up union member
  • An employee's unbelievably evasive account of an incident may undermine his credibility and support the employer's version of events

Court orders

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  1. 1.The Respondent shall pay to the Claimant salary for 20 days worked in June 2016, at Kshs. 22,476
  2. 2.Certificate of Service to issue
  3. 3.No order on the costs
  4. 4.Interest allowed at 14% per annum from the date of Judgment, till payment is made in full

Authorities

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Legislation

  • Employment Act 2007Section 44(4)(g)
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45
  • Employment Act 2007Section 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes 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, "Mwanduka Munguti v A to Z Transporters Limited [2019] KEELRC 592 (KLR)", Case Analysis (2019). Cause No. 616 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/592/eng@2019-10-11

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