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ELRCPartially AllowedCause No. 486 of 2016· [2020] KEELRC 1667 (KLR)

Wycliffe Munyasia Manyonge v Agrics Farm Inputs & Credits (K) [2020] KEELRC 1667 (KLR)

Employment and Labour Relations Court of Kenya
6 February 2020
MMM. Mbaru
4,162 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the employee's firing was unfair because he wasn't given proper notice or a chance to defend himself before termination.

What this practically means

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Executive summary

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The claimant, engaged first as a community facilitator from January 2015 and then on a fixed-term contract as Field Coordinator Kakamega North/Lugari from 1 January 2016, was suspended on 26 May 2016 on allegations of fraud and non-policy compliance, placed on unpaid leave to 9 June 2016. He did not report back, and on 7 August 2016 was invited to a meeting held on 9 August 2016 at which his employment was terminated for gross misconduct over unaccounted airtime, transport monies and warehouse goods. The respondent demanded Ksh.831,750 and counter-claimed for Ksh.88,000 in undisbursed airtime/transport monies, Ksh.743,500 in undelivered goods and Ksh.50,740 collected from farmers. The court framed five issues: unfair termination, reinstatement, alternative remedies, the counter-claim and costs. It held the termination procedurally unfair: the employer failed to follow the mandatory safeguards of section 41 of the Employment Act, terminating the claimant on the same day as the meeting without prior notification or an opportunity to be accompanied. Reinstatement was refused given the lapse of over three years. The claimant was awarded compensation of Ksh.90,000 (three months' gross wage), notice pay of Ksh.30,000, wages of Ksh.39,000 for May and part of June 2016, and a certificate of service. Claims for two years' leave, balance of contract term and return of the motor bike failed. On the counter-claim, the claimant was held liable for Ksh.88,000 with interest, but the claims for Ksh.743,500 and Ksh.50,740 failed because the supporting audit was conducted in October 2016, after termination. Each party was ordered to bear its own costs.

Key legal issues

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01

Procedural fairness of the termination

Holding

Termination was procedurally unfair contrary to section 45 of the Employment Act

Reasoning

The claimant was suspended on 26 May 2016 for investigations but was never recalled by notice; he was invited to a meeting on 9 August 2016 and terminated the same day without a show-cause notice or the safeguards in section 41, including being accompanied by an employee or union representative of his choice. Even where audit findings existed, adherence to the mandatory provisions of section 41 was required.

p. 4
02

Whether reinstatement should issue

Holding

Reinstatement was not granted due to lapse of over three years

Reasoning

Employment terminated on 9 August 2016 and judgment came more than three years later; under section 12 of the ELRC Act, section 49(4) of the Employment Act and Rule 17 of the ELRC (Procedure) Rules, 2016, lapse of time is a mandatory consideration against reinstatement.

p. 5
03

Compensation for unfair termination

Holding

Compensation equivalent of 3 months' gross wage at Ksh.90,000 awarded

Reasoning

Section 49 of the Employment Act applies; considering the defences given and the circumstances, the court found the equivalent of three months' gross wage appropriate as compensation for the unfair termination.

p. 5
04

Counter-claim for unaccounted airtime and transport monies

Holding

Claimant held liable for Ksh.88,000 with interest

Reasoning

As the officer responsible for disbursing airtime and transport monies to 44 field officers, and this having been addressed with him on 26 May and 9 August 2016 without satisfactory responses, the claimant was responsible for the Ksh.88,000 regardless of his claim that Ms Makokha handled disbursement.

p. 6
05

Counter-claim for unaccounted goods worth Ksh.743,500 and Ksh.50,740 from farmers

Holding

Claim failed as the supporting audit postdated the termination

Reasoning

The audit relied upon was conducted in October 2016, after employment had ended on 9 August 2016, which suggested the reasons for termination had not been conclusively investigated as at termination. The court found these grey areas did not support the counter-claim in this regard.

p. 6

Legal principles established

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  • Upon suspension of an employee to allow investigations, the employer bears the duty to summon the employee to answer the allegations under section 41 of the Employment Act; failure to do so renders termination procedurally unfair
  • Termination effected at the same meeting as the disciplinary hearing, without prior notification and section 41 safeguards, is fraught with illegality
  • An employer may deduct a day's wages for each day an employee absents himself without leave under section 19(1)(c) of the Employment Act
  • A senior officer responsible for a programme cannot escape liability for unaccounted funds by blaming a junior employee

Court orders

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  1. 1.Compensation awarded at ksh.90,000
  2. 2.Notice pay Ksh.30,000
  3. 3.Wages withheld May/June 2016 ksh.39,000
  4. 4.Certificate of service shall be issued in accordance with section 51 of the Employment Act, 2007
  5. 5.Dues above shall be paid in accordance with section 49(2) of the Employment Act, 2007
  6. 6.On the counter-claim, payment of ksh.88,000 for airtime and transport unaccounted for
  7. 7.Interest on the ksh.88,000 from the date of filing counter-claim until paid in full
  8. 8.Each party shall pay own costs

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49
  • Employment Act, 2007section 49(2)
  • Employment Act, 2007section 49(4)
  • Employment Act, 2007section 44 and 41(2)
  • Employment Act, 2007section 44(4)(a)
  • Employment Act, 2007section 19(1)(c)
  • Employment Act, 2007section 28(1)(a)
  • Employment Act, 2007section 51
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Societies Actnull

Cases cited (6)

  • Donald C. Avude versus Kenya Forest Service
    [2015] eKLR
  • Kenyatta University & another versus Fred Obare
    [2017] eKLR
  • Grace N Akinyi versus Narok County government
    Cause No.67 of 2019 (Nakuru)
  • Bernard Mwaura Mbuthia versus Nyahururu Water Sanitation Water Company Limited & another
    Cause No.53 of 2019
  • Elizabeth Cherono Kurgat versus Kenya Literature Bureau
    [2014] eKLR
  • Francis Kariuki Gatu versus Teachers Service Commission
    Cause No.142 of 2017 (Nakuru)
Jurisdiction invoked
Employment and Labour Relations Court established under Article 162(2) of the Constitution; claims brought under the Employment Act, 2007

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, "Wycliffe Munyasia Manyonge v Agrics Farm Inputs & Credits (K) [2020] KEELRC 1667 (KLR)", Case Analysis (2020). Cause No. 486 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1667/eng@2020-02-06

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