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ELRCDismissedCause No 1731 of 2013· [2019] KEELRC 2346 (KLR)

Patrick Wambulwa v Schenker Limited (Cause 1731 of 2013) (Employment and Labour) [2019] KEELRC 2346 (KLR)

Employment and Labour Relations Court
8 February 2019
ANAbuodha Jorum Nelson
1,438 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 upheld a rider's summary dismissal for bypassing his employer's fuel card system, confirming employers win when they document reasons and follow fair procedure.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a messenger/rider from 1993 at a monthly salary of Kshs.31,866, was summarily dismissed following allegations of flouting company rules on the recording of mileage and fuel consumption of his motorcycle. The respondent had a fuel card system with Shell under which riders were required to present their cards when fuelling and to log mileage. Investigations, including a physical tank capacity test conducted in the claimant's presence, revealed fuel dispensed exceeding the motorcycle's capacity and mileage inconsistent with fuel obtained. The claimant admitted fuelling without the card and failing to record mileage. After a show cause letter, written explanations, and a disciplinary hearing attended by a colleague of his choice, his services were terminated. The claimant sued, contending the reasons for dismissal were unfounded and not justifiable, and claiming terminal dues including leave, public holidays, rest days and service pay. The court held that under the Employment Act the burden of proving the reasons for termination rests on the employer, and found that the claimant's practice of fuelling without the card, being open to abuse, constituted a valid reason for dismissal. The court was further satisfied that the respondent followed the statutory procedure. On terminal dues, the respondent's evidence that the claimant took his leave, did not work public holidays, and was paid his dues on termination was not controverted. The claim was dismissed with costs.

Key legal issues

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01

Validity of the reasons for summary dismissal

Holding

The claimant's persistent fuelling without the fuel card and failure to record mileage, which undermined the respondent's fuel management system, constituted a valid reason for termination

Reasoning

The respondent had a structured fuel management system requiring riders to present fuel cards and log mileage. The claimant admitted fuelling without the card and not recording mileage, and offered no justification for flouting this policy. The court held this practice was open to abuse and created discrepancies between fuel consumed and mileage covered, which genuinely justified dismissal.

p. 2
02

Procedural fairness of the termination

Holding

The respondent followed the procedure contemplated under the Employment Act: suspension, show cause letter, written explanation, and a disciplinary hearing with the right to be accompanied by a colleague

Reasoning

The claimant was suspended, issued a show cause letter on 3rd June 2013, responded, and was invited by letter dated 17th June 2013 to a disciplinary hearing with the right to be accompanied by a colleague of his choice. He appeared accompanied by Isabella Nganga on 2nd July 2013 before termination. The court was persuaded this satisfied the statutory procedure.

p. 2

Legal principles established

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  • Under the Employment Act, the burden of proving the reasons for termination of an employee's services lies on the employer, and the reasons are those the employer genuinely believed to exist at the time of termination

Court orders

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  1. 1.The claimant's claim is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Employment ActNot specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the 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, "Patrick Wambulwa v Schenker Limited (Cause 1731 of 2013)  (Employment and Labour) [2019] KEELRC 2346 (KLR)", Case Analysis (2019). Cause No 1731 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2346/eng@2019-02-08

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