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ELRCPartially AllowedMemorandum of Claim dated 13th November 2015· [2021] KEELRC 1383 (KLR)

Manpreet Kaur Luthra v Ideal Ceramics Limited [2021] KEELRC 1383 (KLR)

Employment and Labour Relations Court
29 June 2021
4,745 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court upheld a fast-tracked dismissal for misconduct but ordered the employer to refund money it deducted from the employee without proof.

What this practically means

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Executive summary

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The Claimant, a Showroom Manager at the Respondent's Westlands showroom, sued for wrongful and unfair summary dismissal on 1st September 2015 after three cartons of non-ceramic tiles were found on the premises, and for unpaid salary arrears, notice pay, accrued leave, interest and 12 months' damages. She contended she was given no fair hearing, having received the show cause email at 1.31pm, responding at 2.00pm, attending a hastily convened hearing at 4.00pm and being dismissed before it ended. The Respondent maintained she was dismissed for gross misconduct - trading unauthorised third-party products using company staff and vehicles - after due process, and that all terminal dues were paid, including a deduction of Kshs. 79,885/- for unsettled cash accounts. The court held that the hearing met the section 41 standard of the Employment Act: the Claimant was informed of the allegations, responded, confirmed attendance by email and did not seek more time, and the adequacy of preparation time is a question of fact. On substance, the evidence, including the driver's testimony on parcels collected in her name, showed she was engaged in a side hustle peddling tiles from other sources, justifying the dismissal. The suit was dismissed except for the deduction: the Respondent adduced no evidence justifying the Kshs. 79,885/- deducted, and was ordered to refund it within 14 days, failing which execution may issue. As the substantial balance of the claim failed, each party was ordered to bear their own costs. Judgment delivered at Nairobi on 29th June 2021 by Nzioki wa Makau, J.

Key legal issues

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01

Fair hearing under section 41 of the Employment Act

Holding

The Claimant was accorded a fair hearing; she was notified of the allegations, responded to the show cause letter, confirmed attendance by email and did not seek additional time

Reasoning

The court held that a disciplinary hearing under section 41 is not akin to a criminal trial. The email correspondence showed the Claimant was informed of the reasons for contemplated dismissal, replied the same day, did not seek adjournment or documents, and willingly submitted to the process. Despite the speed of the termination, the court found no major infarction vitiating it, applying the Chitavi case on adequacy of time.

p. 4
02

Valid and fair reasons for termination under sections 43 and 45

Holding

The Respondent proved valid reasons - the Claimant was engaged in a side hustle peddling tiles from other sources using the Respondent's premises and resources

Reasoning

The court found the Claimant placed three cartons of tiles not in the Respondent's stock profile on its premises, with the driver's evidence showing packages collected in the Claimant's name. She admitted the tiles were 'samples' for a customer. The dismissal was therefore justified on the employer's genuine belief supported by evidence.

p. 4
03

Entitlement to deduct Kshs. 79,885/- from terminal dues

Holding

The Respondent was not entitled to the deduction and must refund it

Reasoning

The Respondent claimed the deduction was recovery for cash accounts not paid per company policy, but adduced no evidence to justify it. The court ordered the refund within 14 days failing which execution may issue.

p. 4

Legal principles established

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  • Where the employer gives notice of the allegations, a hearing and thereafter terminates the employee, the employee cannot complain the process was unfair or unlawful
  • The adequacy and reasonableness of time given to an employee to prepare a defence is a question of fact determined case by case
  • An employer must justify any deduction made from an employee's terminal dues with evidence

Court orders

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  1. 1.The Claimant's suit dismissed save for the claim on the monies deducted from her
  2. 2.The Respondent to refund the sum of Kshs. 79,885/- to the Claimant within 14 days failing which the Claimant may execute
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 41(1) and (2)
  • Employment Act 2007Section 42(1)
  • Employment Act 2007Section 43(2)
  • Employment Act 2007Section 44(3) and (4)
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 47(5)

Cases cited (10)

  • CMC Aviation Ltd v Captain Mohammed Noor
    [2015] eKLR, Civil Appeal No. 199 of 2003
  • Mary Chemwono Kiptui v Kenya Pipeline
    [2014] eKLR
  • David Wanjau Muhoro v Ol Pejeta Ranching Limited
    [2014] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Iyego Farmers Co-Operative Society v Kenya Union of Commercial Food & Allied Workers
    [2015] eKLR, Civil Appeal No. 12 of 2015
  • Judicial Service Commission v Gladys Boss Shollei
    [2014] eKLR
  • Lawrence Nyamichaba Ondari v National Hospital Insurance Fund
    [2018] eKLR
  • Samsung Electronic East Africa Limited v K.M
    [2017] eKLR
  • British American Tobacco (K) Limited v Kenya Union of Commercial Food and Allied Workers (KUCFAW)
    [2019] eKLR
  • Kenya Union Commercial, Food & Allied Workers v Kitui Water & Sanitation Co. Ltd & Another
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 over a claim for wrongful and unfair termination of employment

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, "Manpreet Kaur Luthra v Ideal Ceramics Limited [2021] KEELRC 1383 (KLR)", Case Analysis (2021). Memorandum of Claim dated 13th November 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1383/eng@2021-06-29

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