Thomas Ngii Ndungani v Dikus Transporters Limited [2019] KEELRC 1811 (KLR)
The bottom line
#A Kenyan court awarded a truck driver over Kshs. 694,000 because his employer fired him without proving misconduct or giving him a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was lawful and fair
The termination was substantively and procedurally unfair; the serious allegations of OBC disconnection and product adulteration were never placed before the Claimant for his response
The termination letter accused the Claimant of gross misconduct, which must be proved on a balance of probability under Section 43 of the Employment Act. The employer's evidence showed internal investigations and an incident report, but the Claimant was not involved in the investigations and was denied an opportunity to be heard as required by Section 41 and the Respondent's own Disciplinary Policy. The employer cannot withhold reasons at the shop floor and later litigate them in court.
Whether the Claimant was entitled to leave pay, house allowance and service pay
Leave pay allowed (leave form with unexplained material alterations given nil probative value); house allowance allowed at 15% of basic salary; service pay allowed as no evidence of NSSF contributions
The Respondent's leave form had material alterations that were not explained, so it was given nil probative value and the Claimant's claim of never going on leave was unassailed. The appointment letter showed a basic salary of Kshs. 25,000 with no house allowance component, engaging Section 31 of the Employment Act, so 15% of basic salary was added, making Kshs. 28,750 the monthly salary. There was no evidence of NSSF contributions, so service pay succeeded.
Whether the Respondent's counterclaim was made out
Counterclaim rejected as it was premised on unproved allegations
The counterclaim sought Kshs. 3,000,000 as cost of PMS, Kshs. 1,000,000 as customer penalty, disposal costs, damages for loss of business and injury to reputation. All were premised on the allegations of theft and contamination which the court found were not proved against the Claimant, so the counterclaim had no foundation and was rejected.
Legal principles established
#- The employer bears the burden under Section 43 of the Employment Act to demonstrate a valid reason for termination at the shop floor, and cannot introduce new reasons and documentation for the first time in court
- An employee must be accorded an opportunity to be heard under Section 41 of the Employment Act before termination; failure renders the termination procedurally unfair
Court orders
#- 1.8 months' salary in compensation (Kshs. 230,000)
- 2.1 month's salary in lieu of notice (Kshs. 28,750)
- 3.Leave pay for 5 years (Kshs. 100,625)
- 4.Prorata leave for 6 months (Kshs. 10,062)
- 5.House allowance for 66 months (Kshs. 247,500)
- 6.Service pay for 5 years at 15 days' pay per year (Kshs. 71,875)
- 7.Salary for 6 days in October 2015 (Kshs. 5,750), totalling Kshs. 694,562
- 8.Interest at court rates from the date of judgment until payment in full
- 9.Claimant to have the costs of the case
- 10.Respondent's counterclaim rejected/dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41 and 43 applied); specific constitutional provision not cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Ngii Ndungani v Dikus Transporters Limited [2019] KEELRC 1811 (KLR)", Case Analysis (2019). Not stated in the judgment (Memorandum of Claim dated 18th July 2017, amended 18th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1811/eng@2019-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.