Kinanga v Deepa Industries Limited (Cause 1603 of 2016) [2021] KEELRC 1328 (KLR)
The bottom line
#Kenya's Employment Court confirmed an employer can lawfully dismiss a supervisor for gross misconduct if a fair disciplinary process was followed and reasons were valid.
What this practically means
#Executive summary
#Key legal issues
#Whether there was valid reason for the Claimant's summary dismissal
Yes - the Claimant's involvement in, or failure to supervise, irregular loading of 20 cartons of crisps constituted gross misconduct under Section 44(4)(c) and (g) of the Employment Act
The Court found on the balance of probability that the Claimant received the show cause and hearing letters and attended the hearing. Evidence of the Driver placed the Claimant at the heart of irregular loading, attempted delivery contrary to standard procedure and communication in an unusual manner. His job description left no room to shift blame to subordinates. Even absent active involvement, questions arose over his failure to supervise, amounting to gross misconduct justifying summary dismissal.
Whether the termination procedure was fair
Yes - the show cause letter, invitation to hearing, advice on the right to be accompanied, the hearing itself and communication of the decision satisfied the minimum standards of procedural fairness
The Claimant was issued a show cause letter specifying the allegations and legal provisions infringed, was given time to respond, was invited to a disciplinary hearing, was advised of his right to be accompanied by a colleague, was heard, and a decision was made and communicated. His complaints of lack of opportunity to defend were not supported by the minutes. His failure to exercise the right to be accompanied could not later be raised as a denial of that right.
Whether the Claimant proved entitlement to leave pay, unpaid salary and constitutional damages
No - the Claimant failed to plead or prove the periods for leave and salary claims and identified no specific constitutional rights infringed
The Court was unable to accede to these heads because the pleadings, evidence and submissions did not disclose what period the annual leave pay of Kshs. 57,750 or unpaid salary of Kshs. 55,440 related to, and no specific constitutional rights infringed by the Respondent were identified to warrant punitive and aggravated damages.
Legal principles established
#- An employee advised of the right to be accompanied at a disciplinary hearing but who does not exercise or complain about it cannot later claim the right was denied
- A supervisor who carelessly discharges his supervisory role allowing irregular loading of goods is liable for gross misconduct under Section 44(4)(c) and (g) of the Employment Act
- A claimant seeking leave pay or unpaid salary must plead and prove the period to which such arrears relate
Court orders
#- 1.The Claim is declined
- 2.The Claimant shall meet the Respondent's costs, restricted to filing fees and disbursements
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the unfair termination claim (Employment Act provisions, including Section 44(4)(c) and (g), invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinanga v Deepa Industries Limited (Cause 1603 of 2016) [2021] KEELRC 1328 (KLR)", Case Analysis (2021). Cause No 1603 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1328/eng@2021-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.