Benson Owino Komollo & 2 others v TKM Maestro Limited [2019] KEELRC 2485 (KLR)
The bottom line
#Three Kenyan employees won notice pay and salary arrears but failed to prove their dismissal was unfair after a workplace theft.
What this practically means
#Executive summary
#Key legal issues
#Validity of the 2nd and 3rd claimants' contracts
Immaterial whether the 2nd and 3rd claimants had written contracts; the respondent admitted employing them and the Employment Act recognises oral contracts
The respondent alleged the contracts were forgeries but RW1 admitted the 2nd and 3rd claimants were its employees. Sections 7, 8 and 26 of the Employment Act apply to both oral and written contracts, so the statutory minimum terms govern absent a written contract.
Whether termination was unfair
Claimants did not prove unfair termination; they admitted holding keys to the workshop and that theft occurred without a break-in, and did not establish absence of a hearing
Under Section 47(5) the employee must prove unfair termination occurred; the employer need only justify the grounds. The grounds were negligence leading to theft. The claimants admitted having keys and that there was no break-in. CW1 did not deny being given a hearing; CW2 and CW3 made no reference to a hearing.
Remedies and entitlements
Claimants entitled to one month's pay in lieu of notice and salary to date of termination; not entitled to housing allowance, service pay, or the remainder of contract period
The contracts did not provide for termination without notice even for gross misconduct, so notice pay was awarded. Salary arrears to 12th July 2011 were due. Housing allowance was embedded in salary; NSSF membership disentitles service pay; no unfair termination was proved so no compensation for the remainder of the contract.
Counterclaim
Counterclaim dismissed as not proved
The investigation report was not produced or shared with the claimants; no inventory, purchase receipts or valuation report proved the listed items were in the workshop or stolen during the robbery.
Legal principles established
#- Where there is no written contract, the statutory minimum terms in the Employment Act apply
- The employee bears the burden of proving unfair termination while the employer bears the burden of justifying the grounds for termination
Court orders
#- 1.Judgment for the 1st Claimant, Benson Owino Komollo: pay in lieu of notice Kshs.49,132 and salary from 1st to 12th July 2011 Kshs.22,676.30, total Kshs.71,808.30
- 2.Judgment for the 2nd Claimant, Festus Muema Nguku: pay in lieu of notice Kshs.49,132 and salary for 12 days worked in July 2011 Kshs.22,676.30, total Kshs.71,808.30
- 3.Judgment for the 3rd Claimant, Peter O. Suku: pay in lieu of notice Kshs.28,529, salary for 12 days worked in July 2011 Kshs.13,167.20, pro rata leave January to June 2011 (10.5 days) Kshs.11,521.30, total Kshs.53,217.50
- 4.The counterclaim is dismissed
- 5.Each party shall bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Owino Komollo & 2 others v TKM Maestro Limited [2019] KEELRC 2485 (KLR)", Case Analysis (2019). Memorandum of Claim dated 6th September 2011 (filed 12th September 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2485/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.