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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 2049 (KLR)

Ramadhan Mutimba v East African Portland Cement Company Limited [2019] KEELRC 2049 (KLR)

Employment and Labour Relations Court
8 March 2019
3,055 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed by the respondent from 2001 as a Depot Clerk and later promoted to Depot Supervisor, sued for unfair termination following his dismissal on 22.9.2011 for failure to account for 259 bags of cement at the Kisii Depot. He sought declaration of his acting appointment, salaries for two suspension periods, leave allowance, NHIF refunds, 12 months' compensation for unfair termination, notice pay, gratuity, severance pay, certificate of service and general damages. The respondent defended the termination as grounded on gross negligence and a fair disciplinary process. The court framed two issues: whether the termination was unfair and unlawful, and whether the claimant was entitled to the reliefs sought. It held that the employer proved a valid and fair reason – gross negligence in signing a taking-over report without verifying stock – and that a fair procedure was followed, evidenced by disciplinary hearing minutes showing the claimant attended with union officials, which were not objected to. The claimant's Re-amended claim was expunged as filed out of time. The claim for unfair termination compensation, leave allowance, NHIF refund, gratuity, severance pay and general damages were all dismissed. However, the court awarded salary in lieu of notice and salaries for both suspension periods, entering judgment for Kshs.423,036, plus costs, interest at court rates from filing, and a certificate of service.

Key legal issues

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01

Whether the termination was for a valid and fair reason

Holding

Yes – the employer proved gross negligence on a balance of probability

Reasoning

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).

p. 3
02

Whether a fair procedure under section 41 was followed

Holding

Yes – minutes showed the claimant attended a disciplinary hearing on 27.7.2011 with union officials

Reasoning

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.

p. 4
03

Whether the claimant was entitled to salary during the two suspension periods

Holding

Yes – no evidence of payment; awarded at Kshs.47,004 per month for both periods

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Declaration that the claimant was employed as Depot Supervisor from 13.2.2007 to 22.9.2011 is granted as prayed
  2. 2.Award of salary in lieu of notice of Kshs.47,004
  3. 3.Award of salary for July–October 2010 (Kshs.47,004 x 4) totalling Kshs.188,016
  4. 4.Award of salary for June–September 2011 (Kshs.47,004 x 4) totalling Kshs.188,016
  5. 5.Total judgment of Kshs.423,036 payable subject to statutory deductions only
  6. 6.Certificate of service to be issued under section 51 of the Employment Act
  7. 7.Costs of the suit to the claimant
  8. 8.Interest at court rates from the date of filing the suit

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44(4)(c)
  • Employment Actsection 45 (including 45(2))
  • Employment Actsection 28
  • Employment Actsection 51

Cases cited (3)

  • Francis Gitau Muraya Vs Registrar, High Court of Kenya & 2 others
    [2017]eKLR
  • CMC Aviation Ltd Vs Muhammud Noor
    [2015]eKLR
  • Kenfrieght (EA) Ltd Vs Benson K. Nguti
    [2016]eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims

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, "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.