Moses Nyaga Nkabu v Gulsan Insaat Sanayi Turizm Nakliyat Ve Ticaret Anonim Sirketi Co. Ltd [2019] KEELRC 1573 (KLR)

Employment and Labour Relations Court

30 May 2019

NMNzioki wa Makau

1,077 words in judgment

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The bottom line

A Kenyan court awarded a dismissed driver compensation because his employer fired him for alleged fuel theft without giving notice or a hearing.

What this practically means

Executive summary

The Claimant, a driver employed by the Respondent, sued for wrongful and unlawful summary dismissal on 15th May 2015 after being accused of stealing fuel, and for terminal dues. He sought a declaration that the termination was wrongful, damages, terminal benefits and costs. The Respondent asserted that 100 litres of diesel found hidden in a culvert near the Claimant's work station matched fuel unaccounted for from his assigned tipper, that he failed to explain the discrepancy, and that the dismissal was substantively and procedurally fair. The Respondent did not attend the hearing despite invitation, leaving the Claimant's testimony uncontroverted. The court held that while fuel siphoning would justify summary dismissal under Section 44 of the Employment Act, the employer must first comply with Section 41 by giving notice and a hearing, following Titus Musau Ndivau & Another v Waridi Limited. The Claimant was neither issued a notice to show cause nor heard before termination, and the Respondent failed to justify the dismissal under Section 43. The suit was allowed in part: the court awarded one month's salary in lieu of notice (Kshs. 22,425), six months' salary as compensation (Kshs. 134,550), costs of the suit, and interest on the two sums at court rates from the date of judgment, with statutory deductions under Section 49. Judgment was delivered at Nyeri on 30th May 2019 by Nzioki wa Makau J.

Key legal issues

Procedural fairness before summary dismissal

Holding

The dismissal was unfair because the Claimant was neither issued a notice to show cause nor accorded a hearing.

Reasoning

The court held that although fuel siphoning is gross misconduct entitling summary dismissal under Section 44, the employer must follow Section 41(2) by giving notice and a fair hearing, as held in Titus Musau Ndivau & Another v Waridi Limited. No notice to show cause was issued and no hearing was accorded, so the dismissal was effected contrary to the law.

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Proof of reason for termination

Holding

The Respondent failed to justify the dismissal as required by Section 43.

Reasoning

Section 43 places the burden on the employer to prove the reasons for termination, failing which the termination is deemed unfair. The Respondent filed a defence but did not attend the hearing or lead evidence, leaving the Claimant's testimony uncontroverted, so no justification for the dismissal was established.

p. 1

Legal principles established

Even where gross misconduct justifies summary dismissal, the employer must comply with the procedural safeguards of Section 41 of the Employment Act.
Failure by the employer to prove the reason for termination renders the termination unfair under Section 43.

Court orders

1.One month's salary in lieu of notice – Kshs. 22,425
2.6 months' salary as compensation – Kshs. 134,550
3.Costs of the suit
4.Interest on the notice pay and compensation at court rates from date of judgment till payment in full
5.Sums i) and ii) subject to statutory deduction per Section 49 of the Employment Act

Authorities

Legislation

Employment ActSection 41
Employment ActSection 42(1)
Employment ActSection 43
Employment ActSection 44
Employment ActSection 49
Employment ActSection 45

Cases cited (1)

Titus Musau Ndivau & Another v Waridi Limited
[2012] eKLR

Jurisdiction invoked: Original jurisdiction under the Employment Act (Sections 41, 43, 44 and 49)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Moses Nyaga Nkabu v Gulsan Insaat Sanayi Turizm Nakliyat Ve Ticaret Anonim Sirketi Co. Ltd [2019] KEELRC 1573 (KLR)", Case Analysis (2019). Cause No 266 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1573/eng@2019-05-30

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