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ELRCPartially AllowedEmployment Cause (statement of claim dated 4th November 2015)· [2021] KEELRC 1097 (KLR)

George Njenga Kinyua v China Road and Bridge Corporation [2021] KEELRC 1097 (KLR)

Employment and Labour Relations Court
13 August 2021
JGJACOB GAKERI
1,552 words in judgment
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The bottom line

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A Kenyan court ruled a truck driver's firing unfair because the employer couldn't prove misconduct or follow proper disciplinary procedure, awarding him over Kshs.200,000.

What this practically means

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Executive summary

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The Claimant, a truck driver, sued the Respondent for salary in lieu of notice, unpaid salary for 1st–23rd September 2014, unpaid house allowance, compensation for unfair termination, interest and costs, totalling Kshs.435,938, alleging that his employment of 1st September 2014 was unfairly and orally terminated without notice on 21st August 2015. The Respondent maintained that employment began on 25th September 2014, that the Claimant's truck exceeded the fuel consumption limit and that he refused to respond to fuel siphoning accusations and was rude, insisting the dismissal followed due procedure with union representation and all dues paid. The court framed four issues: the date of employment, the fairness of the termination, entitlement to reliefs, and costs and interest. It held that the Claimant was employed from 1st September 2014 under the first appointment letter, with the subsequent contracts of 25th September and 25th November 2014 superseding it, the Respondent having provided no evidence that the first contract was discharged. On procedure, the absence of an invitation to a disciplinary hearing and of minutes rendered the termination defective; the Claimant's refusal to sign a show cause letter did not relieve the Respondent of its statutory obligations. On substance, the mere comparison of fuel consumption across different trucks did not prove siphoning; the Claimant's explanation was uncontroverted and the burden of proof lay on the Respondent, contrary to Section 45 of the Employment Act. The claim partially succeeded: Kshs.208,370 was awarded (unpaid salary Kshs.21,538; pay in lieu of notice Kshs.46,708; three months' compensation Kshs.140,124), subject to statutory deductions, with costs and interest at court rates. The house allowance claim failed as unproven.

Key legal issues

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01

Date and terms of employment

Holding

The Claimant was employed under the 1st September 2014 letter, then under successive contracts of 25th September 2014 and 25th November 2014, the later superseding the earlier

Reasoning

The Court found both parties executed multiple contracts. Since the Respondent gave no evidence that the 1st September 2014 contract was discharged, the Claimant was employed continuously from 1st September 2014 until termination on 21st August 2015, with the later contracts superseding the first and the Respondent bound to honour obligations under each.

p. 1
02

Procedural fairness of termination

Holding

The termination was procedurally defective for noncompliance with the Employment Act, 2007

Reasoning

There was no letter of invitation to a disciplinary hearing and no minutes of proceedings on record. The Claimant's refusal to sign the show cause letter and his awareness of the allegations did not relieve the Respondent of its duty to subject him to a fair disciplinary process, following Walter Ogal Anuro v Teachers Service Commission.

p. 2
03

Substantive justification for dismissal (fuel siphoning allegation)

Holding

The dismissal was substantively unfair; the fuel siphoning allegation was unproven

Reasoning

The Respondent relied solely on a comparison of fuel consumption between different trucks driven by different drivers. The Court held such comparison shows consumption levels but not the reasons for them. The Claimant's explanation (load weight, road conditions, cotton soil) went uncontroverted, and under Section 45 of the Employment Act the burden of proof lay on the Respondent.

p. 2
04

Reliefs

Holding

Claimant awarded unpaid salary, pay in lieu of notice, and three months' salary as compensation; house allowance claim dismissed

Reasoning

Remuneration for days worked in September 2014 and salary in lieu of notice were payable. The agreement provided for house allowance at 20% and the Respondent appeared to have complied; the Claimant furnished no evidence of non-payment. Compensation of three months' salary was considered fair given the length of service.

p. 2

Legal principles established

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  • A subsequent contract of employment supersedes an earlier one between the same parties, and the employer is bound by its obligations under the successive arrangements
  • An employer cannot escape its obligation to comply with the Employment Act procedure merely because the employee refused to sign a show cause letter or was aware of the allegations
  • Mere comparison of fuel consumption between trucks driven by different drivers does not prove misconduct; the burden of proof lies on the employer

Court orders

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  1. 1.Award of unpaid salary for 1st – 23rd September 2014 of Kshs.21,538
  2. 2.Pay in lieu of notice (based on highest salary earned) of Kshs.46,708
  3. 3.Compensation for unfair termination equivalent to three (3) months' salary of Kshs.140,124
  4. 4.Total award of Kshs.208,370 subject to statutory deductions
  5. 5.Costs of the suit to the Claimant
  6. 6.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 45
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (2)

  • Walter Ogal Anuro v Teachers Service Commission
    Cause No. 955 of 2011
  • Kenfright (EA) Ltd v Benson Nguti
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment relationship dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Njenga Kinyua v China Road and Bridge Corporation [2021] KEELRC 1097 (KLR)", Case Analysis (2021). Employment Cause (statement of claim dated 4th November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1097/eng@2021-08-13

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