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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 1943 (KLR)

Monda v Kenya Pipeline Company Limited (Cause 798 of 2015) [2020] KEELRC 1943 (KLR)

Employment and Labour Relations Court
26 June 2020
4,968 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent on 3.11.2006 as a Technician and later Controller, was suspended on 19.1.2012 over suspected theft of jet fuel at the Embakasi tank farm and summarily dismissed by letter dated 18.5.2012. He sued for unpaid salary, notice pay, leave pay, severance, CBA increment arrears, twelve months' compensation, twenty-one years' salary to retirement, lifting of the dismissal and reinstatement, plus costs. The respondent denied unfair termination, asserting the claimant had a fair hearing and an appeal, and counterclaimed Kshs. 170,478 for rent, water and garbage charges accrued during his 13-month occupation of the company house after dismissal. The court framed four issues: validity and fairness of the reason, fairness of procedure, entitlement to reliefs, and the counterclaim. It found under section 43 that the respondent failed to prove a valid reason: the dismissal letter cited flouted loading procedures and a suspect shift swap on 3.1.2012, reasons not in the suspension or hearing-invitation letters and unsupported by evidence. Applying section 41 and Court of Appeal authority, the court held that introducing new reasons at or after the hearing violated the claimant's right to a fair hearing. It declared the dismissal unfair, wrongful and unlawful; refused reinstatement for lapse of time; and awarded notice pay, six months' compensation, withheld half salary and 41 leave days, refusing severance, CBA arrears and 21 years' salary. The counterclaim was allowed at a net Kshs. 126,453 and set off, leaving a net award of Kshs. 816,723.60, subject to statutory deductions, plus costs and interest.

Key legal issues

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01

Whether there was a valid and fair reason for the summary dismissal

Holding

The respondent failed to prove a valid and fair reason; the reasons in the dismissal letter differed from the charges and were unsupported by evidence.

Reasoning

The claimant was suspended on suspicion of theft of product, then charged with illegal installation of a control switch and unprocedural dispensing of fuel, yet the dismissal letter cited flouted loading procedures and a suspect shift swap on 3.1.2012. No evidence supported those latter reasons before the committee or the court, so the cited reason for dismissal was not valid.

p. 7
02

Whether a fair procedure under section 41 of the Employment Act was followed

Holding

The procedure was unfair because the reason for dismissal was not in the letter inviting the claimant to the disciplinary hearing, leaving him no opportunity to prepare a defence.

Reasoning

Section 41 requires the employee to be told the reasons for contemplated termination and to be heard on them. The letter of 15.3.2012 did not mention the loading-procedure and shift-swap reasons later relied on in the dismissal letter; these were an afterthought, so the claimant could not defend against them.

p. 7
03

Reliefs payable for unfair dismissal

Holding

Award of six months' salary compensation and one month's salary in lieu of notice, plus withheld half salary during suspension and 41 leave days; severance, CBA increment arrears and 21 years' salary claims refused.

Reasoning

Under sections 49 and 50 of the Employment Act, the court considered the roughly six years of service and the prior misconduct charge from which the claimant had exonerated himself, awarding six months' salary as compensation. Leave days were undisputed and half salary during suspension followed from the finding of unlawfulness.

p. 9
04

The respondent's counterclaim for Kshs. 170,478 (rent arrears, water and garbage charges)

Holding

Counterclaim allowed on merits; net Kshs. 126,453 after deducting payments made, set off against the claimant's award.

Reasoning

The claimant did not rebut RW3's evidence that he occupied the staff house for 13 months after dismissal, and his clearing certificate did not displace the memo dated 20.8.2015 produced by the respondent supporting the debt.

p. 9

Legal principles established

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  • The employer bears the burden of proving the reasons for termination, failing which the termination is unfair under section 45 of the Employment Act.
  • Introduction of new allegations or reasons for dismissal at the disciplinary hearing or in the dismissal letter, which were not in the notice to the hearing, violates the fair hearing guaranteed by section 41 of the Employment Act and renders the dismissal unfair.

Court orders

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  1. 1.Declaration that the summary dismissal of the claimant was unfair, wrongful and unlawful within the meaning of section 45 of the Employment Act.
  2. 2.Judgment for the claimant: Notice Kshs. 119,974.00; Compensation Kshs. 490,044.00; Leave Kshs. 128,973.60; Unpaid salary Kshs. 204,185.00, totalling Kshs. 943,176.60, less counterclaim of Kshs. 126,453.00, net Kshs. 816,723.60.
  3. 3.Award subject to statutory deductions and in addition to costs plus interest at court rates from the date of judgment.
  4. 4.Counterclaim allowed in the net sum of Kshs. 126,453.00 and set off against the claimant's award.

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 45
  • Employment Actsection 41
  • Employment Actsection 49
  • Employment Actsection 50
  • Employment Actsection 40

Cases cited (4)

  • Mary Chemweno Kiptui v. Kenya Pipeline Company Limited
    [2014]eKLR
  • County Assembly of Kisumu & 2 others v. Kisumu County Assembly Service Board & 6 others
    [2015]eKLR
  • National Cereals and Produce Board v. John Kirui Tongorei
    [2017]eKLR
  • CMC Aviation Limited v. Mohammed Nour
    [2015]eKLR
Jurisdiction invoked
First-instance employment claim under the Employment Act (sections 41, 43, 45, 49 and 50)

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, "Monda v Kenya Pipeline Company Limited (Cause 798 of 2015) [2020] KEELRC 1943 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1943/eng@2020-06-26

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