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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 629 (KLR)

David Githinji Kibuge v New Kenya Co-operative Creameries Ltd (KCC) [2019] KEELRC 629 (KLR)

Employment and Labour Relations Court
11 October 2019
OMOnesmus N. Makau
2,730 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 on 8 September 2011 as an Assistant Accountant and later promoted to Depot Accountant at Sotik on a monthly salary of Kshs. 71,000, sued for unfair and unlawful dismissal following a summary dismissal by letter dated 30 May 2013. The Respondent alleged the Claimant's negligence in failing to post cheques and balance accounts exposed it to a loss of about Kshs. 1,505,715. The court framed two issues: whether the dismissal was unfair and unlawful, and whether the Claimant was entitled to the reliefs sought. On substance, the court found the Claimant's own letter of 1 February 2013 admitted omissions in posting banking slips and cheques, so the Respondent discharged its burden under sections 43, 45 and 47(5) of the Employment Act of proving a valid reason. On procedure, the Claimant was served a show cause letter, responded in writing, and was heard by a disciplinary committee, satisfying section 41. The dismissal was therefore held fair and lawful, and claims for notice pay and compensation under section 49, as well as severance pay (no redundancy under section 40), were dismissed. However, the court awarded June 2013 salary of Kshs. 71,000, finding the Claimant worked until 8 July 2013 and that service of the termination letter on 30 May 2013 was not proved, plus leave for one year and ten months (55 days) capped at the pleaded Kshs. 142,000. Judgment was entered for Kshs. 213,000, subject to statutory deductions, with costs and interest at court rates from filing suit.

Key legal issues

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01

Whether the reason for dismissal (negligence causing loss of Kshs. 1,505,715.44) was valid

Holding

The reason was valid; the claimant's own letter admitted omissions in posting banking slips and cheques, discharging the employer's burden under sections 43, 45 and 47(5)

Reasoning

The dismissal letter cited negligence contrary to clause 27.2(4) of the company code. The claimant's letter of 1.2.2013 expressly admitted omissions while posting banking slips and cheques. On that admission the court found the claimant had failed to show the reason was invalid, so the respondent discharged the burden of proving a valid reason on a preponderance of evidence.

p. 3
02

Whether the procedure under section 41 of the Employment Act was followed

Holding

Procedure was fair; the claimant was served a show cause letter, responded, and was heard by a disciplinary committee

Reasoning

Section 41 requires an employer to explain reasons and hear representations before termination. The claimant admitted receiving the show cause letter, tendering a written reply, and attending an oral hearing before a staff disciplinary committee where he defended himself. He did not protest the procedure, so the object of section 41 was met.

p. 4
03

Entitlement to June 2013 salary

Holding

Awarded Kshs. 71,000; the uncontroverted evidence was that the claimant worked until 8.7.2013 and service of the 30.5.2013 letter on that date was not proved

Reasoning

The claimant testified that after the disciplinary hearing he returned to work and only received the termination letter dated 30.5.2013 on 8.7.2013 when he queried delayed salary. The respondent adduced no evidence of service on 30.5.2013, so the claimant was entitled to June 2013 salary.

p. 4
04

Entitlement to untaken annual leave

Holding

Awarded leave for one year and ten months (55 days), capped at the pleaded Kshs. 142,000

Reasoning

The claimant pleaded and testified that he was denied 30 days' annual leave because no one relieved him. The respondent did not rebut this with leave records. The court computed 55 days' leave at Kshs. 150,192.30 but limited the award to the Kshs. 142,000 pleaded.

p. 4

Legal principles established

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  • Termination is unfair if the employer fails to prove both a valid and fair reason and that a fair procedure was followed; the employee first bears the burden of demonstrating a prima facie case before it shifts to the employer.
  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness.

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for salary for June 2013 of Kshs. 71,000 and 55 leave days at Kshs. 142,000, totalling Kshs. 213,000
  2. 2.The award is subject to statutory deductions
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at Court rates from the date of filing suit

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45 (including 45(2))
  • Employment Act, 2007Section 41 (including 41(1) and 41(2))
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 42(1)
  • Respondent's Company Code of RegulationsClause 27.2(4)

Cases cited (4)

  • Walter Ogal Anuro Vs Teacher's Service Commission
    (2013) eKLR
  • Daniel Kiplagat Kipkeibut Vs Smep Deposit Taking Micro Finance Limited
    (2016) eKLR
  • Nicholas Muasya Kyula Vs Farmchem Ltd
    (2012) eKLR
  • Evans Kamadi Misango Vs Barclays Bank Kenya Limited
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "David Githinji Kibuge v New Kenya Co-operative Creameries Ltd (KCC) [2019] KEELRC 629 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/629/eng@2019-10-11

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