Lucy Ndungu v New Wide Garments Kenya EPZ Ltd [2021] KEELRC 648 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the reason for summary dismissal
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.
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).
Procedural fairness of the dismissal
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.
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.
Remedies for unlawful termination
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.
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.
Legal principles established
#- 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
#- 1.Award of fair compensation for unlawful termination of Kshs.209,135/= (Kshs.41,827 x 5 months)
- 2.One month salary in lieu of notice of Kshs.41,827/=
- 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.Total award of Kshs.272,443/= to the claimant as well as costs of the suit less any statutory deductions
- Jurisdiction invoked
- Employment Act, 2007 (Sections 41, 44, 45, 47(5))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.