Ramadhan Mutimba v East African Portland Cement Company Limited [2019] KEELRC 2049 (KLR)
The bottom line
#A Kenyan court upheld a dismissal for negligence but ordered the employer to pay suspension salaries, notice pay, costs and interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was for a valid and fair reason
Yes – the employer proved gross negligence on a balance of probability
The claimant signed a handing over report without verifying the stock in the store, which facilitated the loss of 199 bags of PPC and 8 bags of OPC cement. He had a prior history of similar conduct and had undertaken to pay for losses. The court held the employer's genuine belief was fortified and justified termination under section 44(4)(c).
Whether a fair procedure under section 41 was followed
Yes – minutes showed the claimant attended a disciplinary hearing on 27.7.2011 with union officials
Although the claimant denied knowledge of the hearing, the respondent produced minutes of the hearing of 27.7.2011 showing the claimant attended with five union officials and made representations. The production of those minutes was not objected to, so the court accepted them as full proof of a hearing conducted in accordance with section 41.
Whether the claimant was entitled to salary during the two suspension periods
Yes – no evidence of payment; awarded at Kshs.47,004 per month for both periods
The first suspension was lifted after charges were withdrawn, and the second ended in dismissal, but the parties remained bound by the contract including payment of salary. Additionally, the claimant had paid for the lost cement. The court awarded four months' salary for each suspension period at the aggregate monthly rate of Kshs.47,004.
Legal principles established
#- Under section 45(2) of the Employment Act, termination is unfair if the employer fails to prove a valid and fair reason and a fair procedure
- The reasons for termination are those the employer genuinely believed to exist at the time of termination (section 43)
- Minutes of a disciplinary hearing not objected to in evidence constitute proof that a hearing was conducted (section 41)
- An employee remains entitled to salary under the contract during suspension even where the suspension ends in dismissal
Court orders
#- 1.Declaration that the claimant was employed as Depot Supervisor from 13.2.2007 to 22.9.2011 is granted as prayed
- 2.Award of salary in lieu of notice of Kshs.47,004
- 3.Award of salary for July–October 2010 (Kshs.47,004 x 4) totalling Kshs.188,016
- 4.Award of salary for June–September 2011 (Kshs.47,004 x 4) totalling Kshs.188,016
- 5.Total judgment of Kshs.423,036 payable subject to statutory deductions only
- 6.Certificate of service to be issued under section 51 of the Employment Act
- 7.Costs of the suit to the claimant
- 8.Interest at court rates from the date of filing the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ramadhan Mutimba v East African Portland Cement Company Limited [2019] KEELRC 2049 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2049/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.