Joseph Mageria Ngenye v Oshwal Education Relief Board [2020] KEELRC 1555 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to warrant the Claimant's dismissal
No valid reasons justified summary dismissal. The dismissal was founded on an alleged criminal offence (theft of the vehicle) but no criminal charges were ever preferred against the Claimant, and given his explanation that he rushed to attend to his son involved in a road accident, summary dismissal was harsh and unwarranted.
The Respondent dismissed the Claimant under Section 44(4)(g) of the Employment Act as an employee who commits or is suspected of committing a criminal offence against the employer's property. The court found no criminal offence was indicated or charged. The Claimant had offered a plausible explanation of a family emergency. Treating a three-hour use of the vehicle in an emergency as theft warranting summary dismissal, when other employees received only warnings for misconduct, was disproportionate and harsh.
Whether due process was followed before the termination
Due process was not followed; the dismissal was procedurally unfair under Sections 41 and 45(2) of the Employment Act.
Although the Claimant was served with a notice to show cause and responded with an explanation and apology, he was dismissed after purported 'investigations' without being accorded an opportunity to be heard as required by Section 41 of the Employment Act. Even his appeal was rejected without any hearing before the appeal panel. The court held the failure to hear him denied him the right to be heard, rendering the dismissal unfair and unjustified under Section 45(2).
Whether the Claimant is entitled to the remedies sought
Yes, in part. The court awarded notice pay, unpaid salary for 13 days, gratuity per the CBA and 10 months' salary as compensation, with costs and interest.
Having found both the reason and the procedure defective, the court awarded remedies: one month's salary in lieu of notice; unpaid salary for 13 working days in March 2015; gratuity computed at 15 working days per completed year for 16 years of service under the CBA; and the maximum band of compensation under Section 49 of the Employment Act (10 months' salary), reflecting 16 years of unblemished service and the unfairness of the dismissal. Costs and interest at court rates were granted.
Legal principles established
#- Section 44(4)(g) of the Employment Act envisages committal of a criminal offence to warrant summary dismissal; where no criminal charges are preferred, summary dismissal on that footing is unwarranted
- An employer must hear and consider an employee's representations before termination or summary dismissal under Section 41 of the Employment Act; failure to do so renders the dismissal unfair under Section 45(2)
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Kshs. 47,406
- 2.Payment of unpaid salary for 13 working days (1st to 13th March 2015) of Kshs. 20,542.60
- 3.Payment of gratuity as per the CBA (15 working days for each completed year of service, 16 years) of Kshs. 379,248
- 4.Payment of 10 months' salary as compensation for unlawful and unfair termination of Kshs. 474,060
- 5.Total award of Kshs. 921,256.60 less statutory deductions
- 6.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (implied by the court's composition); Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mageria Ngenye v Oshwal Education Relief Board [2020] KEELRC 1555 (KLR)", Case Analysis (2020). Cause No. 1126 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1555/eng@2020-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.