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ELRCDismissedCause No. 378 of 2017· [2019] KEELRC 2009 (KLR)

Peter Lorot Kodeke v Naivasha Water, Sewerage & Sanitation Co. Ltd [2019] KEELRC 2009 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
24 January 2019
1,811 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 dismissed a former employee's claims because his employer disciplined him fairly for assaulting a workmate and he sued too late on older claims.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2007 as a night guard and from January 2014 as a sewerage attendant, sued for notice pay, house allowance, off duty pay, public holiday pay, leave, June 2017 salary and compensation following termination of his employment on 13th June 2017. He alleged oral employment, denial of overtime, leave and housing, and termination without cause, notice or hearing. The respondent maintained that he served under successive three-month fixed term written contracts, was housed in company accommodation until May 2015 and thereafter paid a house allowance, and was lawfully dismissed for assaulting a colleague, John Mwangi, on 7th June 2017, after a notice to show cause, a written response and a disciplinary hearing. The court found the written contracts disproved the claim of oral employment and that the claimant was given a fair hearing at the shop floor, following Joseph Onyango Asere v Brookside Dairy and Charles Mumo Nyumu v Bollore Africa Transport. Relying on sections 44(3) and (4) of the Employment Act, the court held the assault constituted gross misconduct warranting justified summary dismissal, so no notice pay or compensation was due. Claims for leave, off days, public holidays and overtime relating to the night guard period were held time barred under section 90 and outside the fixed term contracts; the house allowance claim failed as the respondent's evidence of housing and payment was unchallenged. The entire claim was dismissed with costs to the respondent, assessed at Kshs.20,000.

Key legal issues

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01

Fairness of the termination process

Holding

The termination was procedurally fair and substantively justified; the claimant responded in writing to a show cause notice and was heard on 12th June 2017

Reasoning

The claimant admitted in his own handwritten statement having an argument with a colleague. He was issued a notice to show cause on 9th June 2017, responded in writing, and attended a disciplinary hearing on 12th June 2017 before dismissal. The court adopted the shop-floor principle from Asere and Nyumu that internal disciplinary mechanisms suffice where a show cause notice and hearing are not challenged.

p. 2
02

Gross misconduct as ground for summary dismissal

Holding

Assault of a fellow employee constitutes gross misconduct justifying summary dismissal under sections 44(3) and (4) of the Employment Act even without police involvement

Reasoning

The court found the claimant assaulted and injured his colleague John Mwangi. Section 44(3) and (4) permits dismissal for gross misconduct including serious acts of a criminal nature like assault. A complaint to the supervisor and a workplace hearing suffice without criminal prosecution.

p. 2
03

Limitation on claims for night guard period and leave/overtime

Holding

Claims older than three years are time barred under section 90 and claims outside the subsisting fixed term contract cannot succeed

Reasoning

The claimant's claims for off duty, public holidays, leave and overtime as a night guard (2007-2013) predate the suit by more than three years. Under fixed term contracts, terms are specific to each contract and cannot be claimed beyond it. Leave days owing at termination were paid.

p. 3
04

House allowance

Holding

The claim failed because the respondent's evidence of housing and payment of house allowance was unchallenged

Reasoning

Section 10(6) places a duty on the employer to produce work records. The respondent asserted the claimant was housed in company houses until May 2015, after which house allowance was paid, and payslips confirmed this. That evidence was not materially challenged and the claimant was paid owing house allowance at termination.

p. 3

Legal principles established

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  • Internal disciplinary proceedings are not court or criminal trials; the shop floor is the best place to source evidence of employee misconduct and the requirement is only that an employee be reasonably given a hearing
  • An employer may dismiss summarily for gross misconduct such as assault of a fellow employee even where the matter was not reported to the police, provided due process at the workplace is observed

Court orders

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  1. 1.The claims made are dismissed
  2. 2.Costs to the respondent assessed at Kshs. 20,000.00

Authorities

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Legislation

  • Employment Actsection 27(2)
  • Employment Actsection 41(2)
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 10(6)
  • Employment Actsection 90

Cases cited (3)

  • Joseph Onyango Asere versus Brookside Dairy Limited
    [2016] eKLR
  • George Musamali versus G4S Security Services Kenya Ltd
    [2016] eKLR
  • Charles Mumo Nyumu versus Bollore Africa Transport & Logistics Kenya Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act and Labour Relations Act framework; not expressly cited in judgment)

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, "Peter Lorot Kodeke v Naivasha Water, Sewerage & Sanitation Co. Ltd [2019] KEELRC 2009 (KLR)", Case Analysis (2019). Cause No. 378 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2009/eng@2019-01-24

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