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ELRCPartially AllowedCause No. 428 of 2016· [2020] KEELRC 1630 (KLR)

Moses Mwaniki Nderitu v Ibrahim Kinyanjui Gashobe t/a Therasha General Merchants [2020] KEELRC 1630 (KLR)

Employment and Labour Relations Court of Kenya
6 February 2020
MMM. Mbaru
1,357 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a worker's dismissal over theft allegations but still ordered the employer to pay his wages, overtime and leave dues.

What this practically means

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Executive summary

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The claimant sued his former employer seeking notice pay, underpayments, overtime, leave pay, gratuity and compensation following termination of his employment on 23rd December 2015, when he was accused of stealing, arrested, detained for six days and charged in criminal Case No. 3832 of 2015, which remained ongoing. The respondent denied employing the claimant, alternatively asserting he was employed in 1995 as a stores clerk and terminated following an audit that established missing goods and gross misconduct. The respondent called no evidence and filed no work records, leaving the claimant's testimony unchallenged. The court held that the employer is the custodian of work records and should produce them once suit is filed. Adopting the claimant's pleaded date of employment, the court found that under section 43(2) of the Employment Act, 2007, the existence of an ongoing criminal case arising from the claimant's employment conduct constituted genuine reasons justifying termination. Notice pay and compensation were therefore refused. However, the court affirmed that even an employee terminated for good cause is entitled to payment for work done. Absent work records and a written contract, the court referred quantification of underpayment, overtime (3 hours daily, 6 days weekly) and annual leave pay to the Labour Officer, Nakuru, applying the general wage for a general worker for the period 1st December 2011 to 23rd December 2015, with a report due within 45 days. Gratuity was refused as it arises only under a written contract, private treaty or collective agreement, and service pay was not claimed. The claimant was awarded costs. The claim succeeded in part.

Key legal issues

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01

Justification of termination under sections 43 and 45 of the Employment Act

Holding

Termination was justified because the claimant was arrested and charged over matters arising from his employment conduct, giving the employer genuine reasons to terminate

Reasoning

Section 43(2) of the Employment Act, 2007 permits an employer to terminate where there exist matters the employer genuinely believes to exist at the time of termination. The court relied on Paul Wachiuri Ndonga v Keroche Breweries, Mary Chemweno Kiptui v Kenya Pipeline and Kenya Revenue Authority v Reuwel Waithaka Gitahi. The claimant was arrested for theft arising from his employment conduct and a criminal case was ongoing, so genuine reasons existed on 23rd December 2015.

p. 2
02

Entitlement to payment for work done despite lawful termination

Holding

Underpayment, overtime and leave pay are due, but absent work records and any written contract, these must be tabulated by the Labour Officer applying the general wage for a general worker

Reasoning

The respondent filed no work records and called no evidence, leaving the claimant's evidence unchallenged. The employer as custodian of records bears the consequences of failing to produce them. The court assessed commencement at the pleaded date of employment, 23rd December 2011, and referred quantification of underpayment, overtime (3 hours daily for 6 days weekly) and leave pay to the Labour Officer.

p. 3
03

Gratuity and service pay

Holding

Gratuity is not due as it arises only under a written contract, private treaty or collective agreement, and service pay was not pleaded

Reasoning

The court distinguished gratuity from service pay. Section 35 of the Employment Act allows service pay where statutory remittances have not been made, but the claimant, though represented by an advocate, did not claim service pay, so gratuity claimed was refused.

p. 3

Legal principles established

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  • The employer is the custodian of work records and should produce them in court once suit is filed
  • Under section 43(2) of the Employment Act, the reasons for termination are the matters the employer genuinely believed to exist at the time of termination
  • The standard of proof in employment termination is on a balance of probability, and the employer need only prove reasons it genuinely believed to exist
  • Even where termination is for good cause, an employee is entitled to payment for work done

Court orders

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  1. 1.Matter referred to the Labour Officer, Nakuru for tabulation of terminal dues for a general worker from 1st December 2011 to 23rd December 2015 covering underpayment of wages (Ksh.3,200 per month from 1st December 2011 to 1st December 2013 and Ksh.4,500 per month up to 23rd December 2015), overtime pay for 3 hours for 6 days each week, and annual leave pay for the duration of employment
  2. 2.Labour Officer to report to the court within 45 days
  3. 3.The claimant shall be paid his costs

Authorities

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Legislation

  • Employment Act, 2007Section 27
  • Employment Act, 2007Sections 43 and 45
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Section 35

Cases cited (4)

  • Paul Wachiuri Ndonga versus Keroche Breweries Limited
    [2018] eKLR
  • Mary Chemweno Kiptui versus Kenya Pipeline Company Limited
    [2014] eKLR
  • Kenya Revenue Authority versus Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Bamburi Cement Limited vs. William Kilonzi
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Moses Mwaniki Nderitu v Ibrahim Kinyanjui Gashobe t/a Therasha General Merchants [2020] KEELRC 1630 (KLR)", Case Analysis (2020). Cause No. 428 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1630/eng@2020-02-06

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