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ELRCDismissedNot stated in judgment· [2019] KEELRC 2293 (KLR)

Francis Okoyo Ndege v Nairobi X-Ray Supplies Limited [2019] KEELRC 2293 (KLR)

Employment and Labour Relations Court
14 February 2019
NMNzioki wa Makau
1,266 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 driver's unfair termination claim because his employer followed the proper disciplinary procedure before firing him for misconduct.

What this practically means

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Executive summary

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The Claimant, employed from 30th September 2015 as a driver and motorcycle rider earning Kshs. 29,000 per month, sued the Respondent seeking three months' salary in lieu of notice, one year's salary as compensation for unlawful dismissal, unpaid leave for 29 days, and July 2017 salary, together with costs. He pleaded that he was dismissed on 29th July 2017 without any reason being assigned. The Respondent defended the suit on the basis that the Claimant was summarily dismissed for gross misconduct: he caused an accident on 29th July 2017 while driving a company vehicle to collect guests from the United Kingdom, concealed the accident, took staff to wrong accident scenes, and failed to report it to the police. The Respondent asserted that a show cause letter was issued and answered, a disciplinary hearing was held on 2nd August 2017 with the Claimant's right to a witness explained, and the dismissal letter of 18th August 2017 was copied to the Labour Officer, pursuant to Sections 44(3)(c) and (g) of the Employment Act. The Claimant submitted that the dismissal violated Section 41 and relied on several authorities; the Respondent cited authorities supporting compliance with Sections 41 and 44. The court found that the Claimant had concealed the fact that he was given a show cause letter, was heard, and was then dismissed, and held that he failed to prove the dismissal was contrary to Section 41. The Respondent was held justified in terminating the Claimant for misconduct. The suit was dismissed with costs to the Respondent for lack of factual foundation.

Key legal issues

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01

Compliance with Section 41 of the Employment Act in summary dismissal

Holding

The Respondent complied with Section 41; the dismissal was justified on account of the Claimant's misconduct.

Reasoning

The court found that the Claimant was issued with a show cause letter to which he replied, was invited to a disciplinary hearing with notice of his right to a witness or representative, attended with a witness who signed the minutes, and was then informed of the verdict by letter copied to the Labour Officer. The Claimant had also concealed these facts in his pleadings, asserting he was dismissed without cause. The court therefore found no procedural or substantive breach.

p. 3

Legal principles established

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  • An employer who issues a show cause letter, receives a reply, and conducts a disciplinary hearing before summary dismissal complies with Section 41 of the Employment Act and no relief lies against such dismissal.

Court orders

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  1. 1.The suit is dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(3)(c) and (g)
  • Employment ActSection 45

Cases cited (5)

  • Kenfreight (E.A.) Limited v Benson K. Nguti
    [2016] eKLR
  • Kenya Plantation & Agricultural Workers Union v Zena Roses Kenya (Sosiani, Asia & Thika Farm)
    [2017] eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Naftali Ayot Okanja v Rai Plywoods Kenya Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act)

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, "Francis Okoyo Ndege v Nairobi X-Ray Supplies Limited [2019] KEELRC 2293 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2293/eng@2019-02-14

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