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Case Brief · caselaw.co.ke
ELRCDismissedCause No 1603 of 2016· [2021] KEELRC 1328 (KLR)

Kinanga v Deepa Industries Limited (Cause 1603 of 2016) [2021] KEELRC 1328 (KLR)

Employment and Labour Relations Court
2 July 2021
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent from about 2003 and confirmed as Transport Supervisor in 2015 at a combined monthly salary of Kshs. 38,500, was summarily dismissed on 13th June 2016 following the irregular loading of 20 undocumented cartons of crisps worth about Kshs. 20,000 onto a delivery vehicle. He sought a declaration that the termination was unfair and unlawful, notice pay, annual leave pay, unpaid salary, compensation of 12 months' salary, punitive and aggravated damages and costs. The Respondent conceded the employment relationship but justified the dismissal on grounds of gross misconduct, having issued a show cause letter, invited the Claimant to a disciplinary hearing where he was heard, and communicated its decision. The Court found on the balance of probability that the Claimant received both the show cause and invitation letters and attended the hearing; evidence of the Driver placed the Claimant at the heart of the irregular loading, and his job description precluded shifting blame to subordinates. The Court held the Claimant liable for gross misconduct under Section 44(4)(c) and (g) of the Employment Act and found the minimum standards of procedural fairness were met, including the advice on the right to be accompanied, which the Claimant chose not to exercise. The heads for leave pay, unpaid salary and constitutional damages failed for lack of particulars and identification of infringed rights. The Claim was declined in its entirety, with costs to the Respondent restricted to filing fees and disbursements. Judgment dated 2nd July 2021, signed and released at Nairobi under COVID-19 guidelines.

Key legal issues

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01

Whether there was valid reason for the Claimant's summary dismissal

Holding

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

Reasoning

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.

p. 4
02

Whether the termination procedure was fair

Holding

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

Reasoning

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.

p. 4
03

Whether the Claimant proved entitlement to leave pay, unpaid salary and constitutional damages

Holding

No - the Claimant failed to plead or prove the periods for leave and salary claims and identified no specific constitutional rights infringed

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Claim is declined
  2. 2.The Claimant shall meet the Respondent's costs, restricted to filing fees and disbursements

Authorities

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Legislation

  • Employment ActSection 44(4)(c)
  • Employment ActSection 44(4)(g)
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

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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, "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.