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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 2368 (KLR)

Samwel Kipngetich Rotich v Four Wheel Drive Maintenance (Cause 119 of 2014) (Employment and Labour) [2019] KEELRC 2368 (KLR)

Employment and Labour Relations Court
8 February 2019
1,644 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 ruled that firing a night watchman without a disciplinary hearing was unfair, awarding him over Kshs. 203,000 despite theft on his watch.

What this practically means

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Executive summary

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The claimant, a night watchman, sued for wrongful termination and unpaid dues, seeking Kshs.270,464 and 12 months' salary as compensation. The respondent asserted the claimant was summarily dismissed on 26th June 2013 following two theft incidents at its premises and counterclaimed Kshs.190,500 for the lost goods. The court framed two issues: whether the termination was unfair, and entitlement to reliefs. It held that although items were stolen, the respondent never invited the claimant to a disciplinary hearing before summary dismissal, violating section 41 of the Employment Act, rendering the termination procedurally unfair under sections 41 and 45(2). On reliefs, the employer failed to discharge its burden under section 10(7) to prove the claimant's date of employment and salary; the court found the claimant untruthful about his start date and accepted the respondent's date of 1st October 2009. It awarded one month's notice pay (Kshs.10,912), service pay for 3 years (Kshs.16,368) because no NSSF contributions were made, and underpayments totalling Kshs.176,507.40 computed against General Order wage increases. Compensation of 12 months' salary was refused as the claimant admitted property was lost under his watch twice; the public holiday claim failed for want of evidence. The counterclaim was dismissed for want of proof of the lost property or its value. Judgment was entered for the claimant in the total sum of Kshs.203,787.40, with costs of the claim to the claimant and an order for a certificate of service. Delivered at Nairobi on 8th February 2019 by Maureen Onyango, J.

Key legal issues

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01

Procedural fairness of summary dismissal

Holding

The termination was procedurally unfair because the claimant was never accorded a disciplinary hearing before summary dismissal

Reasoning

Section 41 of the Employment Act requires the employer, before terminating on grounds of misconduct, to explain the reasons to the employee and to hear and consider any representations. Although items were stolen at the respondent's premises, RW1 never invited the claimant to a disciplinary hearing prior to the summary dismissal, so the dismissal breached section 41 read with section 45(2).

p. 2
02

Burden of proof of employment terms and salary

Holding

The employer failed to prove the claimant's date of employment and salary under section 10(7) of the Employment Act

Reasoning

The respondent denied issuing the employment letter and alleged employment from 2009 at Kshs.6,300–6,500 per month, but produced no written contract. Section 10(7) places the burden of proving employment terms on the employer absent a written contract, which the respondent failed to discharge. However, the claimant was untruthful about his own employment date, so the court accepted the respondent's stated date of 1st October 2009.

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03

Entitlement to notice pay, service pay and underpayments

Holding

Notice pay of one month's salary, service pay for 3 years (no NSSF contributions made) and underpayments computed against General Order rates were awarded

Reasoning

Having found unfair termination, the court awarded one month's salary in lieu of notice. Service pay was awarded because RW1 admitted never making NSSF contributions. Underpayments were computed from the wage increases effective 1st May of each year from 2010 to termination in June 2013.

p. 3

Legal principles established

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  • An employer must subject an employee accused of gross misconduct to a disciplinary hearing before termination; failure to do so renders the termination procedurally unfair under sections 41 and 45(2) of the Employment Act
  • Under section 10(7) of the Employment Act, the employer bears the burden of proving terms of employment where no written contract is produced

Court orders

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  1. 1.Judgment entered for the claimant against the respondent in the total sum of Kshs.203,787.40
  2. 2.Notice pay of Kshs.10,912 awarded
  3. 3.Service pay for 3 years of Kshs.16,368 awarded
  4. 4.Underpayments totalling Kshs.176,507.40 awarded
  5. 5.The respondent to pay costs of the claim to the claimant
  6. 6.The respondent to issue the claimant with a certificate of service
  7. 7.The counterclaim dismissed

Authorities

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Legislation

  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 44 (including 44(3) and (4))
  • Employment Act, 2007Section 45(2)
  • General OrderWage increases effective 1st May of each year

Cases cited (3)

  • Edwar Isedia Mukasia v Eldo Supermarket Limited
    [2015] eKLR
  • Geoffrey Muguna Mburugu v The Attorney General
    Case No. 3472 of 1994
  • Col. Benjamin Mwema v The Attorney General
    Case No. 2230 of 2001
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (court not expressly stated in the judgment text)

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, "Samwel Kipngetich Rotich v Four Wheel Drive Maintenance (Cause 119 of 2014)  (Employment and Labour) [2019] KEELRC 2368 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2368/eng@2019-02-08

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