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ELRCPartially AllowedCause No. 155 of 2016· [2019] KEELRC 1760 (KLR)

Joseph Manyara v Mawe Mbili Ltd [2019] KEELRC 1760 (KLR)

Employment and Labour Relations Court of Kenya
25 April 2019
MMM. Mbaru
1,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a guard's summary dismissal for theft, awarding him only a Certificate of Service and dismissing all claims for pay and compensation.

What this practically means

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Executive summary

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The claimant, a general worker employed by the respondent from 10th October 2007 as a mason assistant on Ksh.250 per day and later trained as a security guard in April 2013 on Ksh.350 per day, was summarily dismissed on 20th October 2013 after the respondent engaged a security firm. He sued for notice pay of Ksh.10,500, overtime of Ksh.417,602.40, leave allowance of Ksh.43,125, service pay of Ksh.18,750, unpaid house allowance of Ksh.82,125, compensation, general damages and costs, alleging unfair and discriminatory dismissal without notice or payment of dues. The respondent's case, led by chief accountant Peter Karori, was that the claimant worked as a day guard from 6am to 6pm for six days a week while Patriotic Guards provided night security, and that he was dismissed after being found with charcoal stolen from the respondent and failing to give a good defence at hearings. The court found material variance between the claimant's pleadings and sworn evidence, which went to the core of the claims. It held that the real reason for dismissal was theft of charcoal, that the claimant was notified and invited to hearings as required by section 41(2) of the Employment Act, and that summary dismissal under section 44(4) was lawful. Overtime was adequately compensated by the above-minimum wage, housing was provided under section 31, and service pay was not automatic. The court ordered only a Certificate of Service under section 51, dismissed the rest of the claims, and awarded the respondent costs assessed at Ksh.10,000.

Key legal issues

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01

Whether the dismissal was unfair and unlawful

Holding

The dismissal was lawful and justified summary dismissal under sections 41(2) and 44(4) of the Employment Act; the claimant was notified of the theft of charcoal and invited to hearings

Reasoning

The court found the claimant was aware he was found with charcoal belonging to the respondent and was invited to hearings on 16th September, 2nd October and 10th October 2013, and did not challenge those proceedings. The real reason for dismissal was theft, not the hiring of a security firm or a buffalo injury. Summary dismissal under section 44(4) was therefore lawful.

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02

Whether the claimant proved entitlement to overtime, house allowance and service pay

Holding

No entitlement proved: pay exceeded the minimum wage covering overtime, housing was provided, and service pay basis was not established

Reasoning

Work records showed erratic attendance; the daily wage of Ksh.350.00 exceeded the statutory minimum of Ksh.264.50 and adequately compensated any overtime. The claimant was accommodated per section 31. Service pay is not automatic and its rationale was never set out.

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03

Effect of variance between pleadings and evidence

Holding

The material variance between the claimant's pleadings and sworn evidence went to the core of the claims and undermined them

Reasoning

The claimant pleaded a wage of Ksh.350.00 but testified to Ksh.450.00, and pleaded dismissal due to introduction of a security firm but testified to dismissal following a buffalo injury and KWS claim. The court held such variance went to the core of the entire claims made.

p. 2

Legal principles established

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  • Summary dismissal is permissible under section 44(4) of the Employment Act, 2007 where an employee commits a criminal act or acts in a manner causing the employer loss
  • Service pay is not automatic and the employee must establish the basis for it
  • A claim for house allowance fails where housing or accommodation was provided by the employer under section 31 of the Employment Act
  • Pleadings and evidence must be in tandem; material variance between them goes to the core of the claim

Court orders

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  1. 1.Issuance of a Certificate of Service to the claimant in accordance with section 51 of the Employment Act, 2007
  2. 2.Dismissal of all other claims
  3. 3.Costs of the suit to the respondent, assessed at Ksh.10,000.00

Authorities

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Legislation

  • Employment Actsection 44(4)
  • Employment Actsection 41(2)
  • Employment Actsection 31
  • Employment Actsection 51
  • Regulation of Wages (General) (Amendment) Order, 2013minimum wage for a security guard (Ksh.264.50 daily), effective 1st May 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment cause)

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, "Joseph Manyara v Mawe Mbili Ltd [2019] KEELRC 1760 (KLR)", Case Analysis (2019). Cause No. 155 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1760/eng@2019-04-25

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