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ELRCPartially AllowedCause No. 199 of 2016· [2019] KEELRC 1837 (KLR)

Winnistone Ayiekha Musioni v Ereto Bookshop Limited [2019] KEELRC 1837 (KLR)

Employment and Labour Relations Court of Kenya
31 January 2019
MMM. Mbaru
961 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 worker's summary dismissal for theft but awarded unpaid leave pay because the employer kept no leave records.

What this practically means

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Executive summary

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The claimant was employed by the respondent as a general worker/shop attendant on 2nd December 2013 at a gross monthly wage of Ksh. 11,623. On 5th October 2015 he was suspended following allegations that he was implicated in a syndicate where foodstuffs were stolen from the respondent's kitchen, and by letter dated 15th October 2015 his employment was terminated. He sued for notice pay, untaken and pro-rata leave, service pay, house allowance, damages for unfair termination, a certificate of service and costs. The respondent, through its managing director Mr Simon Masikonde, admitted the employment relationship but maintained the claimant was implicated in theft, admitted it and wrote an apology and confession, justifying summary dismissal; it also claimed terminal dues were calculated and offered but declined. The court found the claimant's written apology and confession of having repeatedly eaten the café's food without buying it disproved his assertion that he was suspended for unknown reasons. Relying on section 44 of the Employment Act, 2007, the court held the termination to be a true and justified summary dismissal on grounds of theft and loss of trust. Consequently notice pay, service pay, house allowance and damages were refused. However, under section 28 of the Employment Act the respondent failed to produce records showing leave had been taken or paid for, and the claimant was awarded leave pay of Ksh. 8,717.25 and a certificate of service. All other claims were dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the summary dismissal was justified

Holding

The dismissal was justified as the claimant admitted theft in a written apology and confession

Reasoning

The claimant admitted in a written apology dated the same day as his suspension that he had repeatedly eaten the employer's food without buying it. Section 44 of the Employment Act permits summary dismissal for fundamental breach following acts of a criminal nature or acts constituting loss of confidence and trust. The court found the claimant's pleaded case of suspension for unknown reasons untrue and the termination a true and justified summary dismissal.

p. 2
02

Entitlement to leave pay

Holding

Leave pay of Ksh. 8,717.25 awarded for the last year of service as the employer failed to prove leave was taken or paid

Reasoning

Leave is a statutory right under section 28 of the Employment Act where not taken or paid. The employer bore the burden of producing work records demonstrating the leave days had been taken or paid for, and failed to do so. The claimant was therefore entitled to the tabulated pro-rata leave for the last year in service.

p. 2

Legal principles established

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  • An employer may summarily dismiss an employee for fundamental breach of the employment contract following acts of a criminal nature or acts constituting loss of confidence and trust under section 44 of the Employment Act
  • Leave days are a statutory right under section 28 of the Employment Act and the burden lies on the employer to show leave was taken or paid for

Court orders

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  1. 1.Payment of leave pay of Ksh. 8,717.25 to the claimant
  2. 2.Provision of a Certificate of Service to the claimant
  3. 3.Dismissal of all other claims
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 28
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute referred under the Labour Institutions framework)

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, "Winnistone Ayiekha Musioni v Ereto Bookshop Limited [2019] KEELRC 1837 (KLR)", Case Analysis (2019). Cause No. 199 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1837/eng@2019-01-31

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