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ELRCPartially AllowedCause No 2205 of 2015· [2019] KEELRC 889 (KLR)

Paul Waa Mwaponda v Ola Energy Kenya Limited (Formerly Known as Libya Oil Kenya Limited) [2019] KEELRC 889 (KLR)

Employment and Labour Relations Court
20 September 2019
10,760 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

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 oil marketing company from 1994, was summarily dismissed on 15th October 2015 on grounds that he carelessly and improperly performed work that was his contractual duty, leading to losses of almost 3 million litres of product annually between 2012 and 2014, occasioning loss of trust and confidence. He sued under section 45 of the Employment Act and Article 41 of the Constitution, seeking declarations, reinstatement or in the alternative Kshs. 163,205,555.00, general damages, tax remittance to KRA, costs and interest. The Respondent maintained the dismissal was for a valid reason and followed fair procedure under section 41 and its HR Manual, under which it was not bound by the Disciplinary Committee's recommendation of a first written warning. The court found the dismissal lacked a valid and fair reason: the DC itself found Supply was not the custodian of Location 6 and the forensic reports implicated other employees and system weaknesses in ACCPAC, not the claimant. Procedural fairness at the hearing stage was proved, but the respondent's refusal to furnish the Disciplinary Hearing Report to enable the claimant's appeal was a breach of contract and unfair labour practice, violating Article 41. Reinstatement was refused as barred by section 12(3)(vii) of the ELRC Act after three years; anticipatory emoluments and severance-type dues were dismissed as lacking legal or evidentiary basis. The court awarded one month's salary in lieu of notice (Kshs. 759,635) and maximum compensation of twelve months' gross salary (Kshs. 9,115,620), totaling Kshs. 9,875,255, with costs and interest.

Key legal issues

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01

Whether the summary dismissal was grounded on a valid and fair reason.

Holding

The dismissal was not grounded on a valid and fair reason. The Disciplinary Committee itself found that Supply was not the custodian of Location 6 and that the unreconciled stocks did not fall within the claimant's department; no internal audit, investigation or forensic report directly implicated the claimant in wrongdoing. The respondent failed to discharge its statutory burden under sections 43 and 45 of the Employment Act.

Reasoning

The court examined the claimant's job description and performance agreement and found the failures relied on related to the Operations Department's custody of Location 6 stocks. The DC's findings exonerated Supply from reconciling non-supply items, and the Deloitte forensic report blamed system weaknesses in ACCPAC and recommended action against other named employees, not the claimant. The evidence showed general management lapses rather than the claimant's culpability.

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02

Whether a fair procedure was followed before the dismissal.

Holding

Procedural fairness up to the disciplinary hearing was proved - the claimant was informed of the charges, given time, allowed accompaniment, and made representations. However, the procedure was flawed at the appellate stage because the respondent refused to supply the disciplinary hearing report needed to mount an appeal, breaching the HR Manual and constituting unfair labour practice.

Reasoning

The claimant admitted being invited to the hearing, understood the charges, and confirmed the accuracy of the hearing notes, satisfying section 41(1) and (2). But the court agreed with both the claimant and Rw1 that the appeal could only be exercised effectively upon receipt of the DC's report; its denial breached contract and violated Article 41, and the right to a fair hearing extends to the internal appeal after separation.

p. 10
03

Whether management could lawfully enhance the DC's recommended sentence from a first written warning to summary dismissal.

Holding

Not determined - the issue was never pleaded by the claimant, and parties are bound by their pleadings.

Reasoning

Although it was factually established that the DC recommended a first written warning and the respondent enhanced it to summary dismissal, the claimant did not raise this variation in his pleadings. The court declined to entertain it, holding that a court should not determine matters falling outside the four walls of the pleadings.

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04

Whether a declaration of violation of Article 41 rights could issue in a claim rather than a petition.

Holding

Yes - the objections based on form and the Anarita Karimi Njeru drafting threshold were dismissed; particulars of violation were pleaded and the court granted a declaration that the claimant's right to fair labour practices was violated.

Reasoning

The respondent argued the court could not declare a rights violation absent a petition and that the claim did not meet the Anarita Karimi Njeru threshold. The court held that Article 23 empowers it to issue declarations of rights and that particulars were pleaded in the claim and responded to in the defence, dismissing both objections.

p. 10
05

What reliefs flow from the findings of unfair termination and violation of Article 41.

Holding

Reinstatement was barred by the three-year limit in section 12(3)(vii) of the ELRC Act; anticipatory emoluments and the Kshs. 27,584,249 dues claim were dismissed; the claimant was awarded one month's salary in lieu of notice and maximum compensation of twelve months' gross salary under section 49(1)(c).

Reasoning

Having separated for over three years, reinstatement was statutorily barred. Employment remedies must be proportionate and cannot facilitate unjust enrichment, so anticipatory salaries to retirement were refused. Considering the claimant's over 20 years of service, his innocence, and his failure to secure other employment, the court exercised its discretion under section 49(1)(c) to award the maximum 12 months' compensation plus notice pay.

p. 11

Legal principles established

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  • A reasonable employer cannot punish an employee for failure to perform a duty which was not the employee's contractual duty or which he did perform properly.
  • The right to a fair disciplinary hearing under section 41 of the Employment Act must be construed to include the hearing of the employee's appeal after separation.
  • Denial to an employee of the disciplinary hearing report needed to mount an appeal amounts to breach of contract and unfair labour practice.
  • Parties are bound by their pleadings and a court will not determine issues not pleaded, even where apparent on the evidence.
  • The burden of justifying the reason for termination rests with the employer; if the evidence falls short, the termination is unfair under section 45 of the Employment Act.

Court orders

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  1. 1.Declaration that the Claimant's fundamental right to fair labour practices under Article 41 of the Constitution was violated and infringed by the Respondent's denial of the DC's Disciplinary Hearing Report to enable him mount an appeal.
  2. 2.Declaration that the summary dismissal of the Claimant was unjustified, unlawful and unfair.
  3. 3.Dismissal of the prayer for reinstatement, the court being barred by section 12(3)(vii) of the ELRC Act from ordering reinstatement after the lapse of three years from the date of separation.
  4. 4.Dismissal in its entirety of the claim for anticipatory salary, allowances and benefits of Kshs. 163,201,555.00.
  5. 5.Award of one-month salary in lieu of notice of Kshs. 759,635.
  6. 6.Award of maximum compensation of twelve months' gross salary for unfair termination under section 49(1)(c) of the Employment Act, being Kshs. 9,115,620.
  7. 7.Judgment entered for the Claimant in the total sum of Kshs. 9,875,255.
  8. 8.Costs of the suit to the Claimant, plus interest at court rates from the date of judgment until payment in full.
  9. 9.Dismissal of the claim for dues payable on lawful termination of Kshs. 27,584,249 (the policy of payment not being substantiated by evidence).
  10. 10.Dismissal of the claim for remittance of tax to the Kenya Revenue Authority for want of particulars and proof.
  11. 11.Refusal to declare the dismissal null and void ab initio.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 35(1)(b)
  • Employment Act, 2007Section 41(1) and 41(2)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Section 44(4)(c)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 45(1)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 50
  • Employment Act, 2007Section 5(7)(c)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Generally
  • Legal Notice No. 196 of 2006Nominal loss allowances for petroleum products

Cases cited (18)

  • Mathew Kipkemboi Kitai v Postal Corporation of Kenya
    [2016] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    [2010] LLR 255 (ICK) (September, 2013)
  • Peter Gichuki Kin'ara v IEBC & 2 others
    [2013] eKLR
  • Antony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd
    [2013] eKLR
  • Mwanajuma Juma Kunde v KAPS Municipal Parking Services Ltd
    [2013] eKLR
  • British Leyland UK Ltd v Swift
    [1981] I.L.R 91
  • Polkey v A.E Dayton Services Limited
    [1987] UKHL 8
  • David Sironga Ole Tukai v Francis Arap Munge & Others
    Civil Appeal No. 76 of 2014
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
  • Anarita Karimi Njeru v The Republic
    (1979) KLR 154
  • Alphonce Maghanga Mwahanya v Operation 680 Limited
    [2013] eKLR
  • D.K Marete v Teachers Service Commission
    [2013] eKLR
  • Cyrus Nyaga Kabute v Kirinyaga County Council
    Civil Appeal No. 29 of 1985
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • David Mwangi Gioko & 51 Others v Nairobi City Water & Sewerage Company Limited
    [2013] e.KLR (Industrial Court Cause No. 1722 of 2011)
  • Maria Kagai Ligaga v Coca Cola East Africa Limited
    Industrial Court Cause No. 611 [N] of 2009 (unreported)
Jurisdiction invoked
Sections 41, 43, 45, 47(5), 49(1) and 50 of the Employment Act, 2007; Section 12(3)(vii) of the Employment and Labour Relations Court Act; Articles 23, 35(1)(b) and 41 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Paul Waa Mwaponda v Ola Energy Kenya Limited (Formerly Known as Libya Oil Kenya Limited) [2019] KEELRC 889 (KLR)", Case Analysis (2019). Cause No 2205 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/889/eng@2019-09-20

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