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ELRCPartially AllowedNot stated in the judgment (Employment and Labour Relations Court cause, filed 10th May 2016)· [2019] KEELRC 828 (KLR)

Patrick Oduor Ogore v Mayfair Holdings Limited [2019] KEELRC 828 (KLR)

Employment and Labour Relations Court
16 September 2019
MNMathews N. Nduma
1,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a bakery wrongly fired its driver over fuel theft suspicions without evidence or a hearing, awarding him Kshs. 195,020.

What this practically means

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Executive summary

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The claimant, a driver employed by the respondent bakery from 9th September 2013 and a member of the Bakery, Confectionary, Food Manufacturing and Allied Workers Union covered by a CBA, was summarily dismissed on 5th June 2015 on allegations of siphoning fuel from the delivery van he drove. He claimed notice pay, leave allowance, overtime to Kisii and Kendu Bay, public holiday pay, compensation for unlawful summary dismissal, plus costs and interest, and also complained of repeated unlawful salary deductions of Kshs. 28,031. The respondent, through its Deputy General Manager Abdul Majid Mohamed (RW1), defended the dismissal, asserting that the claimant was surcharged for 25 litres of fuel and signed a full and final settlement letter. Under cross-examination RW1 conceded that no driver had ever been caught siphoning fuel, that the claimant's van was about nine years old while others were new, and that the fuel consumption monitoring records and any disciplinary hearing records were not produced in court. The court framed two issues: whether the summary dismissal was for a valid reason and fair procedure, and entitlement to reliefs. It held the dismissal rested on mere suspicion without expert or documentary proof, and was effected without notice, notice to show cause or a disciplinary hearing, breaching Sections 36, 41, 43 and 45 of the Employment Act, 2007. Applying Nicholas Muasya Kyule vs FarmChem Limited and Daniel Kiplagat Kipkeibut vs SMEP Deposit Taking Micro Finance Ltd, the court awarded four months' salary as compensation (Kshs. 111,440), one month's notice pay (Kshs. 27,860) and two years' untaken leave (Kshs. 55,720), totaling Kshs. 195,020, with interest at court rates from the date of judgment and costs of the suit. The overtime and public holiday claims were dismissed for want of proof. Judgment was delivered on 16th September 2019 by Mathews N. Nduma, Judge.

Key legal issues

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01

Validity of reason and fairness of procedure for summary dismissal

Holding

The dismissal was unlawful and unfair: the employer had no evidence of fuel theft, relied on mere suspicion, and afforded no notice, notice to show cause or disciplinary hearing

Reasoning

The court weighed CW1's testimony that he was falsely accused and surcharged, against RW1's cross-examination concessions: no driver was ever caught siphoning fuel, the claimant's van was 9 years old while others were new, and no fuel consumption records or disciplinary hearing records were produced. Absent proof and procedure, the dismissal breached Sections 36, 41, 43 and 45 of the Employment Act, 2007, entitling the claimant to compensation under Section 49(1)(c) and (4).

p. 2
02

Quantum of compensation and accrued entitlements

Holding

Four months' salary (Kshs. 111,440) as compensation, one month's notice pay (Kshs. 27,860) and two years' untaken leave (Kshs. 55,720) awarded; overtime and public holiday claims dismissed for want of proof

Reasoning

Considering the claimant's two years of service, absence of notice, non-contribution to the dismissal, unpaid terminal benefits beyond a week's salary, and loss of career prospects, the court fixed compensation at four months' salary. Untaken leave of two years was uncontroverted at 25 days per year and was awarded. Overtime and public holiday claims failed on evidentiary grounds.

p. 2

Legal principles established

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  • A summary dismissal founded on mere suspicion without proof and without notice, notice to show cause or a disciplinary hearing violates Sections 36, 41, 43 and 45 of the Employment Act, 2007
  • An employer alleging misconduct (fuel theft) bears the evidential burden and must produce records or expert evidence to support the allegation

Court orders

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  1. 1.Four (4) months compensation Kshs. 111,440
  2. 2.Notice pay Kshs. 27,860
  3. 3.In lieu of two years leave Kshs. 55,720
  4. 4.Total award of Kshs. 195,020 with interest at court rates from date of judgment till payment in full
  5. 5.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 49(1)(c) and (4)

Cases cited (2)

  • Nicholas Muasya Kyule vs FarmChem Limited
    Industrial Cause No. 1992 of 2011 (2012) LLR 235 (ICK)
  • Daniel Kiplagat Kipkeibut vs SMEP Deposit Taking Micro Finance Ltd
    ELRC Cause No. 213 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act, 2007 (Sections 36, 41, 43, 45 and 49 applied)

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, "Patrick Oduor Ogore v Mayfair Holdings Limited [2019] KEELRC 828 (KLR)", Case Analysis (2019). Not stated in the judgment (Employment and Labour Relations Court cause, filed 10th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/828/eng@2019-09-16

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