Kenneth Muhenye Ogongo v Tea Warehouse Limited & another [2021] KEELRC 289 (KLR)
The bottom line
#A Kenyan court upheld a warehouse clerk's dismissal for failing to report missing tea, ruling the process was fair and rejecting malicious prosecution claims.
What this practically means
#Executive summary
#Key legal issues
#Fairness of summary dismissal for failure to report loss of tea
Termination was not unfair or unlawful; the employer had a valid reason and followed due process
The claimant received a show-cause letter, responded, was invited to a disciplinary hearing with staff of his choice, was heard, and a termination letter issued, satisfying section 41 of the Employment Act. He did not dispute that 200 bags of tea went missing while he was the in-charge clerk, and by his own admission as records keeper he noticed the loss but did not report it. The employer thereby discharged the burden under sections 43 and 45 read with 47(5) of the Act.
Malicious prosecution
Not established; police and prosecutor had reasonable and probable cause
At the time of the report, arrest and prosecution, the available information was that substantial quantities of tea went missing while the claimant was in-charge, that he had noticed the loss but failed to report it, and that he and another were arrested. That information amounted to reasonable suspicion to prefer a charge of stealing by servant. The variance between 200 and 360 packages was merely a point of amendment of the charge and did not diminish the reasonable suspicion.
Entitlement to remedies
Only September 2016 salary of Kshs. 20,755.00 awarded; all other heads declined
September 2016 salary was awarded because there was no evidence it was ever paid. Leave claims failed because the claimant had taken four leave days and none was due for the period served; there was no evidence of travel to take annual leave. Pay for unexpired contract tenure was unjustified since the claimant had not worked and the respondent had not occasioned his inability to engage profitably elsewhere. Compensation and malicious prosecution damages failed with the underlying claims.
Legal principles established
#- Elements of malicious prosecution: prosecution by the defendant, determination in claimant's favour, absence of reasonable and probable cause, and malice - with the onus of proving each on the claimant
- An employer who gives notice and affords a hearing satisfies section 41 of the Employment Act, 2007, and where a valid reason exists the termination is fair
- Where the information available to police disclosed reasonable suspicion, an arrest and prosecution are not without reasonable and probable cause and malicious prosecution fails
Court orders
#- 1.The 1st respondent to pay the claimant Kshs. 20,755.00 being September 2016 salary by 15.12.2021
- 2.Interest at Court rates from the date of filing the suit if payment is not made by 15.12.2021
- 3.Each party to bear own costs of the suit
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution / Employment and Labour Relations Court Act (employment and labour relations dispute; not expressly quoted in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Muhenye Ogongo v Tea Warehouse Limited & another [2021] KEELRC 289 (KLR)", Case Analysis (2021). Cause No 858 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/289/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.