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ELRCPartially AllowedNot stated in the judgment as provided· [2020] KEELRC 1169 (KLR)

Nalichi A K Paul v Dhl Supply Chain (K) Limited [2020] KEELRC 1169 (KLR)

Employment and Labour Relations Court
29 April 2020
2,135 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 security supervisor's dismissal as fair, but ordered the employer to pay accrued leave and salary it couldn't prove it had paid.

What this practically means

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Executive summary

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The claimant, a security supervisor employed by the respondent from 4.2.2014 and confirmed permanently on 7.8.2014 on a monthly salary of Kshs. 63,480, was dismissed on 18.9.2015 following events of 6.9.2015 when he reported late for the night shift and was alleged to be intoxicated and insubordinate. He sued for leave pay, September 2015 salary, severance pay, twelve months' salary as damages for unlawful dismissal, Kshs. 100,000 for failure to issue a certificate of service, reinstatement, costs and interest. The respondent defended the dismissal as lawful, procedural and fair, and asserted all terminal dues were paid. The court framed three issues: validity of the reasons for dismissal, fairness of the procedure, and reliefs. On the first, the court found the claimant's admitted lateness sufficient ground for summary dismissal under section 44(4)(a) of the Employment Act. On procedure, the court accepted that a show cause letter, written response, disciplinary hearing on 17.9.2015 and an appeal hearing satisfied section 41; the claimant's disavowal of the minutes' signature was discounted because he never reported forgery to police. The dismissal was accordingly fair and lawful. Reinstatement and section 49 damages were refused, the certificate-of-service damages claim failed for want of legal basis, and severance failed as there was no redundancy. However, as no evidence of payment of terminal dues was produced, the court awarded Kshs. 52,900 for 25 leave days and Kshs. 43,947.70 for 18 days' salary in September 2015, totaling Kshs. 96,847.70, subject to statutory deductions, plus costs and interest at court rates from filing. Judgment delivered by Onsemus N. Makau J on 29 April 2020 at Nairobi.

Key legal issues

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01

Whether the reasons for dismissal were valid and fair

Holding

The claimant's admitted late reporting on 6.9.2015 constituted a valid reason for summary dismissal under section 44(4)(a) of the Employment Act.

Reasoning

There was no dispute that the claimant reported late on 6.9.2015; only the extent of lateness was contested. The court held the admitted lateness was sufficient reason for summary dismissal under section 44(4)(a), which covers absence from the appointed place of work without leave or lawful cause. The intoxication and insubordination allegations did not need to be resolved on this basis.

p. 3
02

Whether a fair procedure was followed

Holding

The respondent proved on a balance of probability that it followed a fair hearing: show cause letter, written response, disciplinary hearing, and appeal.

Reasoning

Section 41 requires the employer to explain the reasons and hear the employee's representations. The claimant was served a show cause letter, responded in writing, attended a disciplinary hearing, and appealed with a hearing. Although he disowned the signature on the minutes, he did not report forgery to the police, undermining his denial. Procedural fairness was therefore satisfied per Radido J's formulation in Patrick Abuga v ICPAK.

p. 3
03

Whether the reliefs sought should be granted

Holding

Only accrued terminal dues (leave and September salary) were awarded; damages, reinstatement, certificate-of-service damages and severance were refused.

Reasoning

Having found the dismissal fair and lawful, the court declined reinstatement and section 49 damages. The certificate-of-service claim of Kshs. 100,000 failed for lack of legal basis since the law provides a fine against the employer, not employee damages. Severance failed because termination was not redundancy. However, the respondent produced no evidence of payment of terminal dues, so leave pay and salary for 18 days worked in September 2015 were awarded.

p. 4

Legal principles established

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  • Absence from the appointed place of work without leave or lawful cause is a justifiable ground for summary dismissal under section 44(4)(a) of the Employment Act.
  • A show cause letter, a written response, a disciplinary hearing and an appeal hearing satisfy the procedural fairness requirements of section 41 of the Employment Act.

Court orders

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  1. 1.Judgment entered for the claimant for leave pay of Kshs. 52,900.00
  2. 2.Judgment entered for the claimant for salary for 18 days worked in September 2015 of Kshs. 43,947.70
  3. 3.Total award of Kshs. 96,847.70 subject to statutory deductions
  4. 4.Costs of the suit to the claimant
  5. 5.Interest at court rates from the date of filing suit

Authorities

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Legislation

  • Employment Act, 2007section 44(4)(a) (and (b), (c), (d) as cited by respondent)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 49

Cases cited (1)

  • Patrick Abuya v Institute of Certified Public Accountants of Kenya (ICPAK) & Another
    (2015) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 44(4) and 49 considered)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Nalichi A K Paul v Dhl Supply Chain (K) Limited [2020] KEELRC 1169 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1169/eng@2020-04-29

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