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ELRCDismissedConsolidated Causes 349, 350 & 351 of 2017· [2019] KEELRC 1643 (KLR)

Anthony Nguta Munywoki & 2 others v County Supermarkets Limited [2019] KEELRC 1643 (KLR)

Employment and Labour Relations Court
21 May 2019
NMNzioki wa Makau
2,191 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Three Naivas employees lost their unfair dismissal case because they skipped their own disciplinary hearing and made unproven claims in court.

What this practically means

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Executive summary

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Three bakers employed by the Respondent supermarket sued in consolidated Causes 349, 350 and 351 of 2017 claiming unfair and unlawful dismissal, non-remittance of statutory deductions, unpaid leave, house allowance, NSSF dues and gratuity. Each alleged that in April 2017, upon arriving for work, the assistant manager terminated his contract without a notice to show cause or a disciplinary hearing, contrary to the Employment Act and natural justice. The Respondent maintained that the Claimants were suspected of stealing sugar and yeast, were suspended, and were invited to a disciplinary hearing on 15th May 2017 which they refused to attend, prompting summary termination for gross misconduct. The Claimants testified in the absence of the Respondent and, for the first time in testimony and submissions, alleged dismissal on grounds of ethnicity and perceived support for ODM, invoking Article 27(4) of the Constitution and Section 5(3) of the Employment Act. The Respondent relied on Justus Mutahi Ihaji v Kenya Airways Limited on substantive justification and procedural fairness. The court found that replies to the Claimants' demand letter, produced by the Respondent, showed their advocate was notified of the suspension and disciplinary hearing and could accompany them, rendering the claims premised on a falsehood. The discrimination claim was unpleaded, unsupported by authority, and dismissed as a red herring. The court dismissed all three suits with costs to the Respondent.

Key legal issues

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01

Unfair and unlawful dismissal

Holding

The claims failed because the Respondent demonstrated that the Claimants were suspended and summoned to a disciplinary hearing, with their advocate notified and invited to accompany them, and they chose not to attend

Reasoning

The judgment records that replies to the demand letter, produced by the Respondent, showed the Claimants' lawyer was notified of the suspension and of the disciplinary hearing scheduled for 15th May 2017 and could accompany them. The court found the claims premised on the assertion of no hearing to be false, and the Claimants were not candid. The suits were therefore not proved on a balance of probabilities.

p. 2
02

Alleged discrimination on grounds of ethnicity and political affiliation

Holding

The discrimination claim was not pleaded and had no evidentiary or jurisprudential support, and was dismissed as a red herring

Reasoning

The court noted that nowhere in the pleadings was discrimination alleged; it arose only in testimony and submissions. No authority was cited by the Claimants. The court held that constitutional provisions cannot be conveniently raised at hearing without basis, and found the line of submissions a red herring intended to extract relief unavailable on the pleaded case.

p. 2
03

Non-remittance of statutory deductions

Holding

No relief granted; the suits were dismissed in their entirety without specific findings on remittance

Reasoning

The Claimants alleged statutory deductions were made but never remitted, relying on Section 19(4), (5) and (6) of the Employment Act. The Respondent submitted there was no evidence of non-remittance and that avenues existed with NHIF, NSSF and KRA. The court made no specific finding on this head, dismissing the suits wholesale for failure of proof.

p. 2

Legal principles established

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  • A claim of constitutional infringement cannot be raised for the first time in testimony and submissions without pleading it or citing supporting authority

Court orders

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  1. 1.Dismissal of each of the three suits (Causes 349, 350 and 351 of 2017)
  2. 2.Costs of the suits to the Respondent

Authorities

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Legislation

  • Employment ActSection 19(4), (5) and (6)
  • Employment ActSection 5(3)
  • Constitution of KenyaArticle 27(4)

Cases cited (1)

  • Justus Mutahi Ihaji v Kenya Airways Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (claims under the Employment Act); no specific constitutional article invoked in the judgment

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, "Anthony Nguta Munywoki & 2 others v County Supermarkets Limited [2019] KEELRC 1643 (KLR)", Case Analysis (2019). Consolidated Causes 349, 350 & 351 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1643/eng@2019-05-21

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