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ELRCDismissedCause No 2298 of 2015· [2020] KEELRC 1617 (KLR)

Julius Eshitoli Waka v Total Kenya Limited [2020] KEELRC 1617 (KLR)

Employment and Labour Relations Court
13 February 2020
3,639 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 ruled Total Kenya fairly dismissed an employee for fuel card misuse, confirming employer-issued staff facilities stay tied to employment.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1st September 2008 as a buyer, was issued two Bon Voyage Fuel Cards whose balances were recovered through monthly salary deductions. Following irregular transactions, high card utilization and non-payment, he was suspended on 4th September 2015, invited to disciplinary meetings, and summarily dismissed on 6th October 2015 for gross misconduct, owing Kshs.457,500 on the cards. He sued seeking declarations of breach of the Employment Act, house allowance of Kshs.3,185,822.70, salary in lieu of notice, 12 months' compensation for unfair termination, pension contributions, bonus, accrued leave pay, costs and interest. The claimant argued the fuel card arrangement was a separate client-supplier relationship outside his contract, and relied on authorities to support his house allowance claim. The respondent contended the dismissal was for gross misconduct, that the card was inseparable from employment, that the salary was consolidated and inclusive of house allowance, and that due process was followed. The court framed three issues: whether the fuel card contract was independent of employment; whether the dismissal was fair and lawful; and entitlement to reliefs. It held the card facility could not be divorced from the employment relationship; that there was valid reason for dismissal and the disciplinary process met section 41 requirements, so there was no unfair dismissal; and that the salary was consolidated. All heads of claim failed and the entire claim was dismissed with each party bearing its own costs. Judgment was delivered at Nairobi on 13th February 2020 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the Bon Voyage Fuel Card arrangement was independent of the employment contract

Holding

The card facility was inseparable from the employment relationship because it was issued to the claimant as an employee and recovered through salary deductions.

Reasoning

The claimant argued the card created a separate client-supplier relationship outside the contract. The court found that although the card was not an integral part of the employment contract, it was issued to the claimant in his capacity as an employee, with the respondent recovering fuel credit from his monthly salary, making the two relationships inseparable.

p. 5
02

Whether the summary dismissal was fair and lawful

Holding

The dismissal was for valid reason and followed a fair procedure under sections 41 and 45 of the Employment Act; there was no unfair dismissal.

Reasoning

The accusations of irregular credit acquisition, high card utilization and non-repayment were not disputed; the claimant admitted owing Kshs.457,500. He did not complain about the conduct of the disciplinary hearings or the minutes, only that he was not given a copy. The court found valid reason and procedural compliance with section 41.

p. 6
03

Whether the claimant was entitled to house allowance

Holding

The claim failed because the salary was consolidated and inclusive of house allowance under section 31(2)(a) of the Employment Act.

Reasoning

The claimant conceded his contract did not specify house allowance and he never complained during his seven years of employment. The letter of appointment did not include house allowance and he accepted its terms by signing. The court held section 31 permits consolidated salaries inclusive of house allowance.

p. 6

Legal principles established

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  • A fuel card facility issued to an employee, recovered through salary deductions, cannot be divorced from the employment contract even where it is not an integral term of the contract.
  • Section 44(4)(g) of the Employment Act permits dismissal where an employee commits an offence to the substantial detriment of the employer.
  • An employer may pay a consolidated salary inclusive of house allowance under section 31 of the Employment Act.

Court orders

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  1. 1.The entire claim is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Actsection 31
  • Employment Actsection 31(1)
  • Employment Actsection 31(2)(a)
  • Employment Actsection 36
  • Employment Actsection 41
  • Employment Actsection 44(2)
  • Employment Actsection 44(3)
  • Employment Actsection 44(4)(g)
  • Employment Actsection 44(4e) (as cited in dismissal letter)
  • Employment Actsection 45(1) and (2)
  • Retirement Benefits Actnot specified

Cases cited (2)

  • Zephania O. Nyambane and Another v Nakuru Water & Sanitation Service Company Limited
    [2013] eKLR
  • Stephen Miheso v Kaimosi Tea Estate Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 (claim for unfair termination and breach of the Employment Act)

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, "Julius Eshitoli Waka v Total Kenya Limited [2020] KEELRC 1617 (KLR)", Case Analysis (2020). Cause No 2298 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1617/eng@2020-02-13

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