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ELRCDismissedCause No. 448 of 2016· [2019] KEELRC 1924 (KLR)

David Temba Ombima v Kenya Agriculture & Livestock Research Organisation [2019] KEELRC 1924 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
21 January 2019
MMM. Mbaru
1,333 words in judgment
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The bottom line

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Kenya's Employment Court upheld a herdsman's summary dismissal for attempted theft of livestock, ruling his written appointment terms and paid terminal dues ended his benefit claims.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a herdsman, sued for a declaration of unfair termination and an array of terminal benefits including notice pay, underpayments from 2001, annual leave, pro-rata leave, overtime, rest day pay, public holiday pay, gratuity, compensation, a certificate of service and costs. He claimed he worked continuously for 15 years without leave, rest days or overtime compensation and was verbally dismissed on 1st May 2016 without cause or hearing. The respondent asserted the claimant was caught with eight cows at the gate on the night of 14th April 2016 with intent to remove them, was arrested and reported to Lanet Police Post, and was lawfully summarily dismissed for gross misconduct, having been paid terminal dues of Ksh.110,249.80 under an agreement brokered before a labour officer. The respondent adopted the evidence of Patrick Githui Mwangi, who testified on the casual terms of employment, rest days and work hours. The court applied sections 44, 41(2), 10(3) and 37 of the Employment Act, 2007, and the authorities on conversion of casual employment. It held that the claimant's gross misconduct and criminal act justified summary dismissal, that claims for underpayments, leave, rest days and overtime lacked basis where employment commenced by letter of appointment, and that the terminal dues paid, together with continued accommodation, made further payment unjust. The entire claim was 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 by the claimant's gross misconduct in being found with the respondent's cows with intent to remove them; the claim that he was sent away without cause was unsubstantiated.

Reasoning

The court found the claimant did not materially contest that he was arrested and reported to the police on 14 April 2016 for the attempted removal of animals. The evidence that the foreman sent him away without cause lacked substantial grounds against the police report, so the criminal act and gross misconduct justified summary dismissal under section 44 of the Employment Act.

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02

Whether claims for underpayments, leave, rest days and overtime were payable

Holding

These claims failed; where employment commenced by letter of appointment they were without basis, and leave/rest-day entitlements of casual employees were disputed.

Reasoning

The court held that upon a letter of appointment the claims for underpayments, leave not taken, rest days and overtime lacked basis. The respondent's witness testified casual employees received a rest day per week and no overtime was permitted. The terminal dues agreement settled outstanding wages at KES110,249.80, making further payment unjust.

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03

Status of the employment relationship

Holding

The claimant, though addressed as casual, was on an ongoing letter of appointment with monthly-paid wages and assigned duties, terminable on notice and for good cause.

Reasoning

Applying Krystalline Salt and Rashid Mazuri Ramadhani on conversion of casual employment into written contracts, the court found the ongoing appointment letter with monthly wages and specific duties took the claimant out of pure casual employment, so the engagement could be terminated upon notice and for good cause rather than at will.

p. 2

Legal principles established

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  • Section 44 of the Employment Act permits summary dismissal for fundamental breach or gross misconduct, subject to compliance with the procedural hearing requirement in section 41(2)
  • Where an employee is engaged under a written letter of appointment with monthly wages and assigned duties, the employment is not casual notwithstanding the label, and claims for casual-term benefits fail

Court orders

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  1. 1.The claims made are found without merit and are dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 44
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 10(3)
  • Employment Act, 2007section 37

Cases cited (2)

  • Krystalline Salt Limited versus Kwekwe Mwakele & 67 others
    [2017] eKLR
  • Rashid Mazuri Ramadhani & 10 others versus Doshi & Company (Hardware) Limited & another
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Labour Relations Act (first-instance 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, "David Temba Ombima v Kenya Agriculture & Livestock Research Organisation [2019] KEELRC 1924 (KLR)", Case Analysis (2019). Cause No. 448 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1924/eng@2019-01-21

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