Alphonce Shihalo Ngaira v Kenya Stationers Limited (Kensta Group) [2019] KEELRC 749 (KLR)

The Claimant, the lorry driver, and his colleague had sole custody of the lorry on which blocks belonging to Insteel were found loaded. Section 44(g) of the Employment Act permits summary dismissal where an employee commits or is reasonably suspected of committing a criminal offence against or to the substantial detriment of the employer's property. The loss compromised the lessor-lessee relationship and justified termination on the reason of negligence.

The court relied on the Court of Appeal decision in Teachers Service Commission v Joseph Wambugu Nderitu to hold that a successful outcome of a criminal process against an employee has no primacy over an internal disciplinary process arising from the same circumstances. The Claimant's acquittal therefore did not, of itself, entitle him to reinstatement or render the termination unfair.

Although the Respondent claimed a disciplinary hearing was held, it did not produce the minutes of the disciplinary proceedings, and the termination letter dated 11th October 2010 referred only to the suspension letter of 6th October 2010. On the evidence on record, the Claimant was not given an opportunity to be heard prior to termination as required by section 41.

The Respondent's letter dated 12th October 2010 and the October 2010 payslip showed payment of leave pay, service pay and salary for days worked. The June 2010 payslip showed a house allowance of Kshs.3,500 was already paid. No evidence of mental torture was adduced. The court also declined to entertain prayers appearing only in submissions, holding parties bound by pleadings.