Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 56 of 2017· [2019] KEELRC 1144 (KLR)

David Wangondu Muiruri v Mt. Kenya Bottlers Limited & another [2019] KEELRC 1144 (KLR)

Employment and Labour Relations Court
11 July 2019
1,975 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled an employer's dismissal was fair despite the worker's later acquittal, awarding notice pay but rejecting malicious prosecution damages.

What this practically means

#

Executive summary

#
The Claimant, a driver employed by the 1st Respondent, was suspended in November 2014 after approximately 40 litres of fuel were found in the vehicle he was driving during a fuel collection exercise. He was arrested in October 2014, handed to the 2nd Respondent and charged with stealing, and was summarily dismissed effective January 2015 following a disciplinary hearing. The criminal charges were terminated in his favour on 23rd March 2016. He sued for wrongful termination, terminal benefits (one-day leave, leave allowance, 15 days' salary for January 2015, pension dues and three months' notice pay), a certificate of service and general damages for malicious prosecution. The 1st Respondent maintained the dismissal was for gross misconduct following a fair process, but conceded that it had commuted the summary dismissal to normal termination, entitling the Claimant to notice pay it computed at Kshs. 91,704/- which he failed to collect. The 2nd Respondent denied malice, contending the prosecution was founded on reasonable and probable cause. The court held the 1st Respondent had a reasonable basis for dismissal, that the Claimant was accorded a hearing complying with Section 41 of the Employment Act, and that the dismissal was for just cause under Section 43 notwithstanding the subsequent acquittal. The malicious prosecution claim against the 2nd Respondent failed as no malice or absence of probable cause was proved. Judgment was entered against the 1st Respondent for Kshs. 91,704/- notice pay and Kshs. 16,303/- for 15 days worked and one-day leave; each party was ordered to bear its own costs.

Key legal issues

#
01

Fairness and validity of the summary dismissal

Holding

The dismissal was for just cause under Section 43 of the Employment Act and the Claimant was accorded a fair hearing under Section 41

Reasoning

The Claimant was found driving a vehicle carrying stolen fuel hidden in jerrycans, giving the employer reasonable grounds to dismiss him. He was suspended pending investigations, issued a show cause letter and taken through a disciplinary hearing on 11th December 2014 before dismissal. The court applied the range of reasonable responses standard urged by the 1st Respondent, and the subsequent acquittal did not retrospectively render the dismissal unjustified.

p. 2
02

Malicious prosecution claim against the 2nd Respondent

Holding

The claim failed as the Claimant did not prove malice or lack of reasonable and probable cause

Reasoning

The four elements of malicious prosecution - institution by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, and malice - must all unite to establish the cause of action. The prosecution followed the employer's report of suspected theft and the search of the vehicle the Claimant was driving, disclosing probable cause. No scheme to falsely implicate him was revealed.

p. 2
03

Terminal dues payable

Holding

Entitled to 3 months' notice pay, 15 days' salary for January 2015 and one-day leave, with pension already paid

Reasoning

The 1st Respondent had acquiesced to commutation of the summary dismissal to normal termination, which carried a right to three months' notice pay of Kshs. 91,704/-, one-day leave earned but untaken in 2014, 15 days' salary for January 2015, and accrued pension. The pension had been paid, leaving the terminal dues uncollected by the Claimant.

p. 2

Legal principles established

#
  • An employer who reduces a summary dismissal to normal termination must pay the corresponding notice pay and terminal dues
  • Dismissal based on an employer's reasonable suspicion, following a disciplinary hearing, is justified under Section 43 of the Employment Act notwithstanding a subsequent acquittal

Court orders

#
  1. 1.Judgment against the 1st Respondent for Kshs. 91,704/- being 3 months' notice pay
  2. 2.Judgment against the 1st Respondent for Kshs. 16,303/- being 15 days worked and one-day leave
  3. 3.Each party to bear their own costs

Authorities

#

Legislation

  • Employment ActSection 43
  • Employment ActSection 41

Cases cited (8)

  • Stephen Gachau Githaiga v Margaret Wambui Weru
    [2015] eKLR
  • Naqvi Syedomar v Paramount Bank Limited & Another
    [2015] eKLR
  • Michael Gitau Njoroge v Board of Management Afya Yetu Initiative
    [2015] eKLR
  • Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike
    [2017] eKLR
  • Mbowa v East Mengo District Administration
    [1972] EA 352
  • Rueben Ikatwa & 17 Others v Commanding Officer, British Army Training Unit Kenya & Another
    [2017] eKLR
  • CFC Stanbic Bank Limited v Danson Mwashako Mwakuona
    [2015] eKLR
  • Maurice Owino Onyango v Music Copyright Society of Kenya
    [2015] eKLR
Jurisdiction invoked
Employment and labour relations dispute before the Employment and Labour Relations Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Wangondu Muiruri v Mt. Kenya Bottlers Limited & another [2019] KEELRC 1144 (KLR)", Case Analysis (2019). Cause No 56 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1144/eng@2019-07-11

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