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ELRCPartially AllowedStatement of claim dated 7th December, 2017· [2021] KEELRC 648 (KLR)

Lucy Ndungu v New Wide Garments Kenya EPZ Ltd [2021] KEELRC 648 (KLR)

Employment and Labour Relations Court
21 October 2021
3,580 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer fired a shipping clerk over unproven bribery claims and was ordered to pay her Kshs.272,443 plus costs.

What this practically means

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Executive summary

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The claimant, employed as a shipping clerk by the respondent from 23rd March 2011, was sent on compulsory leave in September 2016 amid allegations of fraudulent activities and conflict of interest, namely receiving kickbacks from transporters. She answered a notice to show cause, requested but was not supplied with the mpesa and bank statements relied upon (said to be held by the CID), and attended a disciplinary meeting on 17th October 2016 without a representative. She was summarily dismissed by letter dated 7th November 2016. The court framed three issues: validity of the reason, procedural fairness, and remedies. On the first, it found the respondent failed to identify the transporters involved, produced no investigation report despite referring the matter to Athi River Police Station, gave inconsistent accounts of the sums allegedly received, and never established that the claimant had the power to allocate transport business; the allegations were mere witch-hunting. On procedure, the claimant was denied the documents she sought and attendance of a representative, contrary to Section 41 of the Employment Act. The termination was therefore substantively and procedurally unfair. The court awarded five months' salary as compensation (Kshs.209,135), one month's salary in lieu of notice (Kshs.41,827), and unpaid salary of Kshs.21,481 after deducting Kshs.110,000 admitted, totalling Kshs.272,443 plus costs. Gratuity and leave allowance claims were declined for want of proof. Judgment was delivered virtually under the COVID-19 directions.

Key legal issues

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01

Validity of the reason for summary dismissal

Holding

The respondent failed to prove a valid reason; allegations of kickbacks were not substantiated with evidence linking the claimant's bank and mpesa transactions to bribes.

Reasoning

The respondent relied on 'certain transporters' without identifying them, produced only mpesa and bank statements without police investigation reports, contradicted itself on the sums allegedly received (Kshs.3,600,000 at the disciplinary meeting versus Kshs.6,000,000 in court), and never established that the claimant had the duty to allocate transport business. The allegations were therefore mere suspicion and witch-hunting, failing the test in Section 45(1)(a).

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02

Procedural fairness of the dismissal

Holding

The termination was procedurally flawed: the claimant was denied the documents she requested, was not allowed a representative of her choice, and the disciplinary meeting did not proceed to completion.

Reasoning

Section 41(1) requires an employer to explain the reasons for termination in a language the employee understands and to allow a fellow employee or shop floor representative. The claimant requested her bank and mpesa statements (said to be with CID) and was refused; she attended the 17th October 2016 meeting without a representative; the meeting did not complete. This breached natural justice, rendering the dismissal procedurally unfair.

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03

Remedies for unlawful termination

Holding

Compensation of five months' gross salary, one month's salary in lieu of notice, and unpaid salary were awarded; gratuity and leave allowance were declined for want of proof.

Reasoning

Having found the termination unlawful both substantively and procedurally, the court applied Section 49 discretion to award equivalent of five months' salary, notice pay, and the outstanding salary balance after deducting the Kshs.110,000 the claimant admitted receiving. Gratuity and leave claims failed because the letter of appointment made no provision and no proof was tendered.

p. 5

Legal principles established

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  • The employer bears the burden of justifying the grounds for termination; where allegations of bribery are not substantiated, summary dismissal is unlawful.
  • Procedural fairness under Section 41 of the Employment Act applies even where summary dismissal is contemplated.

Court orders

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  1. 1.Award of fair compensation for unlawful termination of Kshs.209,135/= (Kshs.41,827 x 5 months)
  2. 2.One month salary in lieu of notice of Kshs.41,827/=
  3. 3.Unpaid salary for August, September, October and 7 days up to 7th November, 2016 less Kshs.110,000/= admitted, i.e. Kshs.21,481/=
  4. 4.Total award of Kshs.272,443/= to the claimant as well as costs of the suit less any statutory deductions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(2)
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment Act, 2007Sections 41(1), 44, 44(4)(g), 45(1)(a), 47(5)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Lyndah Ajiambo versus Smep Microfinance Bank Limited
    (2017) eKLR
  • Jackson Butiya versus Eastern Produce Kenya Limited
    Industrial Court Case No.335 of 2011
  • Rose Akoth Ogwang versus General Insurance Limited
    2018 eKLR
  • CFC Stanbic Bank Limited versus Danson Mwashiko Mwakuwon
    (2015) eKLR, Civil Appeal No.3 of 2014
  • Lawrence Lien Shum versus East Africa Portland Cement Company Limited
    (2018) eKLR, ELRC 1018 of 2017
  • Fredrick Saundu Amolo versus Principal Namanya Mixed Day Secondary School and 2 others
  • Loice Otieno versus Kenya Commercial Bank Limited
    Cause No.1050 of 2011
Jurisdiction invoked
Employment Act, 2007 (Sections 41, 44, 45, 47(5))

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, "Lucy Ndungu v New Wide Garments Kenya EPZ Ltd [2021] KEELRC 648 (KLR)", Case Analysis (2021). Statement of claim dated 7th December, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/648/eng@2021-10-21

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