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ELRCDismissedCause No. 70 of 2017· [2020] KEELRC 1435 (KLR)

Wycliff Jumba Indiazi v Mega Pack (K) Limited [2020] KEELRC 1435 (KLR)

Employment and Labour Relations Court of Kenya
27 February 2020
MMM. Mbaru
1,245 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, a machine operator employed by the respondent from August 2010 until November 2016, sued for terminal dues following summary dismissal. He alleged he was dismissed without investigations after being accused of hiding a bailer twine, and claimed untaken annual leave of Ksh.52,507, rest days pay of Ksh.129,770.27, notice pay of Ksh.12,770, service gratuity of Ksh.37,434, compensation, general damages for mental anguish and costs. He testified that on 19 November 2016 he kept a second bailer twine behind the machine to prevent theft, was issued a show cause notice, attended a disciplinary hearing and was summarily dismissed. The defence, through Eric Njenga Wagatwa, maintained the claimant was found to have hidden the twine with intent to steal, was given a show cause notice and a hearing (attending on 23 November 2016, a day late), and that all terminal dues were paid into his bank account. The court found the claimant admitted hiding the twine, that the defence of intent to steal was true and correct, and that due process under sections 44(3) and (4) read with section 41(2) of the Employment Act was followed, making summary dismissal justified. Claims for compensation, notice pay, rest days pay, annual leave pay, service gratuity and general damages were each found without justification. All claims were dismissed with costs to the respondent. Judgment delivered at Nakuru on 27 February 2020 by M. Mbaru, Judge.

Key legal issues

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01

Whether summary dismissal for gross misconduct was justified

Holding

The dismissal was justified; the claimant hid the bailer twine with intent to steal and failed to show good cause

Reasoning

The claimant admitted sourcing a second bailer twine while the first was unfinished and hiding it behind the machine. He was issued a show cause notice and, though he missed the scheduled hearing of 22 November 2016, he was heard on 23 November. His explanations were found insufficient. Sections 44(3) and (4) read with section 41(2) of the Employment Act permit summary dismissal on gross misconduct after hearing the employee.

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02

Whether due process was followed

Holding

Due process was followed; the claimant received a show cause notice and a disciplinary hearing

Reasoning

The court found that the claimant was given a notice to show cause, was invited to a hearing, and although he failed to attend on the scheduled date of 22 November 2016, he appeared the next day and was given a hearing. His terminal dues were tabulated and deposited into his bank account. Accordingly, the procedural requirements of the Employment Act were satisfied.

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Legal principles established

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  • An employer may summarily dismiss an employee for gross misconduct under section 44(3) and (4) of the Employment Act after inviting the employee to give a defence under section 41(2), and failure to give good cause justifies dismissal

Court orders

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  1. 1.The claims made by the claimant are dismissed
  2. 2.Costs to the respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; claim for terminal dues following summary dismissal)

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, "Wycliff Jumba Indiazi v Mega Pack (K) Limited [2020] KEELRC 1435 (KLR)", Case Analysis (2020). Cause No. 70 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1435/eng@2020-02-27

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