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ELRCPartially AllowedMemorandum of Claim dated 18th May 2018 (filed 21st May 2018)· [2020] KEELRC 1520 (KLR)

Titus Muteru Kimathi v Trans-Way (K) Logistics Limited [2020] KEELRC 1520 (KLR)

Employment and Labour Relations Court
5 March 2020
LNLINNET NDOLO
938 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 lorry driver employed by the Respondent from 17th February 2017 at a monthly salary of Kshs. 35,000, sued over the termination of his employment on 8th March 2018 after he was accused of stealing coils. He sought notice pay, salary for eight days in March 2018, leave pay, unremitted NSSF dues, refund of deductions, balance of contract, and twelve months' salary as compensation. The Respondent defended the dismissal on grounds of loss of locks and chains assigned to the Claimant, habitual lateness and dishonesty, backed by three prior warning letters. The Court framed two issues: whether the termination was unlawful, and entitlement to remedies. It found the Respondent failed to establish a valid reason for termination under Section 43 of the Employment Act, noting there was no evidence the charges were served on the Claimant prior to termination as required by Section 41. Significantly, the Certificate of Service issued on the termination date described the Claimant as honest, obedient and trustworthy, contradicting the Respondent's case. The Court also held that a Kshs. 21,000 recovery for lost locks and chains was an unlawful surcharge, applying Kenya National Library Services v Beatrice N. Ayoti, since the Claimant was not heard and the cost was unproven. Judgment was entered for the Claimant in the total sum of Kshs. 157,850, comprising three months' salary compensation, eight days' salary, the surcharge refund and one year's leave pay, with interest at court rates from judgment and costs of the case. Claims for notice pay, NSSF dues and balance of contract failed.

Key legal issues

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01

Unlawful termination

Holding

Termination was unlawful both substantively and procedurally; the Respondent failed to prove a valid reason and did not serve the charges on the Claimant before termination.

Reasoning

The accusations of gross misconduct were not supported by evidence that the charges were ever served on the Claimant prior to termination, breaching Section 41. Additionally, the Certificate of Service issued the same day described the Claimant as honest, obedient and trustworthy, which contradicted the Respondent's later allegations, undermining the credibility of the asserted grounds for dismissal under Section 43.

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02

Lawfulness of surcharge for lost equipment

Holding

The surcharge of Kshs. 21,000 was unlawful as the Claimant was not heard prior to it and no evidence proved the cost of the lost items.

Reasoning

Applying Kenya National Library Services v Beatrice N. Ayoti, surcharge is a disciplinary measure requiring compliance with Section 41 hearing requirements. The Claimant testified he was not heard, the Respondent did not contest this, and no evidence was tendered to prove the value of the lost locks and chains, rendering the recovery unlawful and refundable.

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03

Compensation for unfair termination

Holding

Three months' salary in compensation awarded, considering length of service, employment record and the Respondent's conduct.

Reasoning

Following the finding of unlawful termination, the Court exercised discretion under the remedies framework, taking into account the Claimant's length of service, his employment record, and the Respondent's conduct in the termination transaction, arriving at three months' salary as appropriate compensation.

p. 2

Legal principles established

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  • An employer must establish a valid reason for termination under Section 43 of the Employment Act and adhere to the procedural fairness requirements of Section 41.
  • Surcharge against an employee is a disciplinary action that must be undertaken within the confines of Section 41 of the Employment Act, after hearing the employee.

Court orders

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  1. 1.3 months' salary in compensation of Kshs. 103,500
  2. 2.Salary for 8 days in March 2018 of Kshs. 9,200
  3. 3.Refund of unlawful surcharge of Kshs. 21,000
  4. 4.Leave pay for 1 year of Kshs. 24,150
  5. 5.Total judgment of Kshs. 157,850 with interest at court rates from the date of judgment until payment in full
  6. 6.Claimant awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41

Cases cited (1)

  • Kenya National Library Services v Beatrice N. Ayoti
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Sections 41 and 43)

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, "Titus Muteru Kimathi v Trans-Way (K) Logistics Limited [2020] KEELRC 1520 (KLR)", Case Analysis (2020). Memorandum of Claim dated 18th May 2018 (filed 21st May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1520/eng@2020-03-06

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