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ELRCDismissedNot stated in the judgment as provided· [2019] KEELRC 1545 (KLR)

Kenya Union of Commercial, Food & Allied Workers v Kitui Water & Sanitation Co. Ltd [2019] KEELRC 1545 (KLR)

Employment and Labour Relations Court
15 May 2019
3,063 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan water company's dismissal of an employee for misconduct was upheld because it gave valid reasons and fair hearing opportunities he ignored.

What this practically means

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Executive summary

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The Claimant union sued the Respondent on behalf of the Grievant, Emmanuel Kyambi Munguti, a former employee terminated on 19th January 2016, seeking a declaration that the termination, salary reduction and related actions were unfair and unlawful, unconditional reinstatement, payment of benefits, salary arrears of Kshs. 515,820/-, and Kshs. 144,000/- for use of his personal motorcycle. The Respondent denied the claims, asserting that the Grievant was employed afresh in December 2012 under a new contract following an interview, that his salary reduction reflected the new terms, and that his dismissal was for gross misconduct including unauthorized business dealings, receiving money from clients, illegal water connections and absenteeism. It maintained that the Grievant was issued notices to show cause and repeatedly invited to disciplinary hearings which he failed to attend without apology, and that he was eventually heard by the HR Board Committee before termination. The Respondent also declined to reinstate him after conciliation because his conduct weighed heavily against him, whereas two other employees were reinstated after taking responsibility. The Grievant testified that he never attended a disciplinary hearing and that notices reached him after the dates had passed. The court found that the Respondent had valid reasons warranting termination and had followed proper procedure, that the Grievant snubbed invitations and accepted the new contract terms, and that the motorcycle claim was unsubstantiated and unauthorized. The claim was dismissed in its entirety with costs to the Respondent.

Key legal issues

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01

Validity of the reason for termination

Holding

The Respondent had valid reasons - gross misconduct including unauthorized business dealings, receiving money from clients, illegal connections and absenteeism

Reasoning

The Grievant had been reprimanded from 2013, admitted opening a shop selling fittings, received money from clients contrary to his contract, and absented himself from his new station without approval. Repeated complaints from customers and his failure to report to the transferred station constituted valid grounds for termination under Section 45 of the Employment Act.

p. 4
02

Procedural fairness under Section 41 of the Employment Act

Holding

The Respondent followed proper procedure; the Grievant was issued notices to show cause and several invitations to disciplinary hearings which he snubbed without apology

Reasoning

The Grievant was issued a show cause letter on 15th September 2015 and invited repeatedly to the staff advisory committee and HR Board Committee. His failure to attend without apology was his own doing; he eventually appeared before the Board, was heard, and his explanations were found unsatisfactory. The court accepted the Respondent's account that he signed the delivery book, though the book was not availed.

p. 3
03

Salary reduction and fresh contract of employment

Holding

The Grievant was employed afresh by the Respondent under a new contract dated 4th December 2012 after an interview; the terms he cited were those of his former employer

Reasoning

The Grievant testified that he was interviewed and signed a fresh contract upon joining the Respondent. The Respondent submitted that it was not a transfer but a new job, and the Grievant accepted the new terms, including the reduced salary. The court accepted this position.

p. 3
04

Claim for motorcycle mileage

Holding

The claim of Kshs. 144,000/- failed for want of proof and authorization

Reasoning

The Grievant conceded there was no written agreement for use of his motorcycle; the Respondent denied authorizing its use or any mileage claim, and no documentary evidence was produced to substantiate the claim.

p. 4

Legal principles established

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  • An employer who has valid reasons for termination and affords the employee notice and opportunity to be heard satisfies Sections 41 and 45 of the Employment Act
  • A party who alleges a claim (such as mileage expenses) must prove it with evidence

Court orders

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  1. 1.The Grievant's claim is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 45
  • Constitution of KenyaArticle 50
  • Public Service Code of Regulation(s)Not specified

Cases cited (5)

  • David Wanjau Muhoro v Ol Pejeta Ranching Limited
    [2014] eKLR
  • Joseph Korir v Race Guards Limited
    [2018] eKLR
  • Mathew Lucy Cherusa v Poverelle Sisters of Belgano T/A Blessed Louis Palazzalo Health Centre
    [2013] eKLR
  • Duke Onchiri Mose v Rosoga Investments Limited
    [2017] eKLR
  • David Getare Nyang'au v Houseman General Contractors Ltd
    [2013] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment and Labour Relations Court); not expressly stated by constitutional provision in the judgment as provided

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, "Kenya Union of Commercial, Food & Allied Workers v Kitui Water & Sanitation Co. Ltd [2019] KEELRC 1545 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1545/eng@2019-05-15

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