Ngeno v Unga Limited & another (Cause 189 of 2016) [2020] KEELRC 25 (KLR)
The bottom line
#Kenya's Employment Court upheld a summary dismissal where an employee refused to return a company vehicle, confirming employees must prove unfair dismissal claims.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for dismissal
The reason (unlawful retention of company vehicle and disobedience of lawful instructions) was valid and fair under sections 44(4) and 45(2) of the Employment Act, amounting to gross misconduct.
The court found the claimant retained the company vehicle from 10 September 2014 to 19 December 2014 despite a lawful instruction of 22 October 2014 and a second instruction of 18 December 2014. Misuse of company property and deliberate disobedience of lawful instructions are grounds a reasonable employer would treat as gross misconduct warranting summary dismissal under section 44.
Fairness of procedure under section 41
The procedure was fair: the claimant was served with show cause notices, invited to a disciplinary hearing with a right to be accompanied, attended, gave his defence, signed the minutes, and the decision was communicated.
The claimant admitted being notified of the allegations, attending the hearing on 13 January 2015, airing his defence, correcting and signing the minutes. Although the decision came four months later, the court was satisfied that section 41 requirements of explanation, hearing and consideration of representations were met, and the claimant failed to prove unfair dismissal.
Claimed redundancy as the real reason
Rejected: the buying centre reopened seasonally, the position was filled by another employee, and the position did not become superfluous.
RW1 testified that buying centres for maize and wheat operate seasonally and continued after the claimant's dismissal; his position was occupied by Mr. Justus Musangi, and the redundancy of a colleague, Mr. Oloo, arose in different circumstances. The claimant's assertion that the dismissal masked redundancy was therefore not proved.
Legal principles established
#- An employer may summarily dismiss an employee who knowingly disobeys a lawful command issued by a person in authority over him.
- The burden of proving unfair termination lies on the employee under section 47(5) of the Employment Act.
Court orders
#- 1.The suit is dismissed save that the respondents are directed to issue the claimant with a certificate of service under Section 51 of the Employment Act.
- 2.Each party to bear own costs.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Court Art. 162(2) not expressly quoted; suit founded on the Employment Act, ss. 41, 44, 45, 47(5) and 51)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngeno v Unga Limited & another (Cause 189 of 2016) [2020] KEELRC 25 (KLR)", Case Analysis (2020). Employment and Labour Relations Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/25/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.