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ELRCDismissedCause No. 502 of 2016· [2020] KEELRC 1064 (KLR)

Bonface Simiyu Makoe v Kongoni River Farm (Star Division) [2020] KEELRC 1064 (KLR)

Employment and Labour Relations Court of Kenya
11 May 2020
MMM. Mbaru
1,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a farm worker's summary dismissal for theft, ruling his employer followed fair procedure and owed no compensation.

What this practically means

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Executive summary

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The claimant, a general worker employed by the respondent from about 2010 at a monthly wage of Ksh.7,378, was summarily dismissed on 27th July, 2016 after being accused of stealing two troughs (200 metres each) from the pack house. He claimed unpaid salaries, compensation for unfair dismissal, gratuity, unpaid July salary, unpaid leave, overtime, off days and house allowance, contending he received no notice or reasons. The respondent's case, through its human resource assistant Evelyn Otieno, was that the claimant admitted taking the troughs, was issued a notice to show cause dated 18th July, 2016, replied in writing, and was heard at a disciplinary meeting on 23rd July, 2016 attended by a union representative, a shop steward and a colleague of his choice, where he offered to resign to earn his dues rather than face summary dismissal. The court found substantial and full compliance with section 41 of the Employment Act, 2007 and, applying the Court of Appeal decision in Wasike v KPLC on section 43, held that the respondent genuinely and reasonably believed the claimant committed theft, amounting to gross misconduct under section 44(4). Summary dismissal was therefore lawful and justified, and the claimant could not sanitise his misconduct by offering to resign to earn service pay. The suit was dismissed, but the respondent's admitted dues (pay for days worked, untaken leave, overtime, off days and certificate of service) are to be tabulated at the shop floor. Each party was ordered to bear its own costs.

Key legal issues

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01

Compliance with section 41 of the Employment Act (notice and hearing before termination)

Holding

The court found substantial and full compliance with section 41: the claimant was notified of the misconduct, issued a show cause notice, replied, and attended a disciplinary hearing with a representative of his choice, a union representative and shop steward

Reasoning

The evidence showed the claimant was notified of the theft allegations, issued a notice to show cause dated 18th July 2016, replied in writing, and was heard at a disciplinary meeting on 23rd July 2016 attended by his chosen representative Bradley, a union representative and shop steward, with minutes recorded verbatim. His responses were heard and considered before summary dismissal.

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02

Validity of the reason for termination under sections 43 and 44(4)

Holding

The reason - removal of two troughs from the pack house without authorisation, amounting to theft and gross misconduct - justified summary dismissal

Reasoning

At the disciplinary hearing the claimant admitted removing two troughs without authorisation and not following correct procedures. The hearing found this was theft of company property through an organised scheme. Under section 44(4) read with sections 41 and 43, summary dismissal was lawful and justified.

p. 3
03

Entitlement to terminal dues where dismissal is justified

Holding

Only the dues admitted by the respondent in submissions and the dismissal letter are payable, to be tabulated at the shop floor; compensation, gratuity and house allowance are not due

Reasoning

The respondent admitted owing pay for days worked, untaken leave, overtime, off days and a certificate of service. Compensation for unfair dismissal was not due as the dismissal was justified; gratuity was unsupported by any collective agreement or contract; house allowance had already been paid under the July 2016 payment statement.

p. 3

Legal principles established

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  • An employer need only prove the reasons it genuinely believed to exist for terminating an employee's services under section 43 of the Employment Act
  • An employee found guilty of gross misconduct cannot sanitise the misconduct by offering to resign so as to earn service pay

Court orders

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  1. 1.The claims made are dismissed
  2. 2.The claimant shall attend at the shop floor and his terminal dues tabulated in accordance with the letter and notice of summary dismissal (pay for days worked, untaken leave days, unpaid overtime, unpaid off days and certificate of service)
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(3) and (4)

Cases cited (1)

  • Wasike v Kenya Power & Lighting Company (KPLC)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment relationship between the parties)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bonface Simiyu Makoe v Kongoni River Farm (Star Division) [2020] KEELRC 1064 (KLR)", Case Analysis (2020). Cause No. 502 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1064/eng@2020-05-11

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