Peter Lorot Kodeke v Naivasha Water, Sewerage & Sanitation Co. Ltd [2019] KEELRC 2009 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Fairness of the termination process
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
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.
Gross misconduct as ground for summary dismissal
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
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.
Limitation on claims for night guard period and leave/overtime
Claims older than three years are time barred under section 90 and claims outside the subsisting fixed term contract cannot succeed
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.
House allowance
The claim failed because the respondent's evidence of housing and payment of house allowance was unchallenged
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.
Legal principles established
#- 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
#- 1.The claims made are dismissed
- 2.Costs to the respondent assessed at Kshs. 20,000.00
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.