Paul Kimemia Njihia v Kenya Credit Traders Limited [2020] KEELRC 1619 (KLR)
The bottom line
#A Kenyan court found the dismissal procedurally unfair but refused compensation because the employee's own dishonesty caused his sacking.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal
The termination was procedurally unfair; the Claimant was ambushed and not given sufficient time to prepare for a disciplinary hearing or to be accompanied by a colleague.
Section 41 obliges the employer to notify the employee before termination that termination is contemplated and to afford an opportunity to make representations. The Respondent did not controvert the Claimant's testimony that he was not notified when summoned that termination was under consideration. Any hearing held was therefore a sham or mechanical process not meeting the statutory threshold.
Substantive fairness of the dismissal
The Respondent proved valid and fair reasons for the dismissal — the Claimant dishonestly received customer instalment payments through his personal mpesa account contrary to company instructions.
Under sections 43 and 45 the Respondent bore the burden of proving the reasons for dismissal. It produced mpesa statements showing payments from customers to the Claimant's personal account, and an internal memo directing staff to stop receiving payments through personal mpesa accounts. The Claimant admitted receiving such payments despite the paybill account and could not explain how customers got his details. His conduct was deliberate and dishonest.
Compensation and notice pay
Compensation refused due to the Claimant's dishonesty; notice pay had already been offered by the Respondent.
Compensation is a discretionary remedy. The Claimant's dishonest conduct made it inappropriate. Although the procedural unfairness would ordinarily have attracted one month's salary in lieu of notice, the Respondent had offered that pay, so nothing turned on that head of relief.
Legal principles established
#- In cases of summary dismissal, an oral hearing is a prerequisite under section 41(2) of the Employment Act, and the employee must be afforded sufficient time to prepare a defence.
- A disciplinary hearing convened without notice of the charges or of contemplated termination, denying the employee time to prepare or be accompanied, is a sham or mechanical process failing the statutory threshold.
Court orders
#- 1.Declaration that the termination of the Claimant's employment, though substantively fair, was procedurally unfair
- 2.Declined to award compensation or any other relief save for a Certificate of Service and balances, if any, of the security deposit
- 3.Respondent to issue the Claimant a Certificate of Service
- 4.Respondent to release the balance of the security deposit to the Claimant, if not used to offset loans
- 5.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Kimemia Njihia v Kenya Credit Traders Limited [2020] KEELRC 1619 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1619/eng@2020-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.