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ELRCPartially AllowedCause No 1944 of 2016· [2021] KEELRC 1560 (KLR)

Joseph Kinuthia Miguongo v Kenya Kazi Services Limited [2021] KEELRC 1560 (KLR)

Employment and Labour Relations Court
20 April 2021
NMNzioki wa Makau
3,345 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that dismissing an employee for refusing to carry cash in an unsafe vehicle was unfair, awarding him a year's salary.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a driver from 24th February 2014 and later elevated to team leader, claimed compensation for unlawful and unfair termination. On 16th December 2015, while assigned to ferry cash to the Central Bank of Kenya, he noticed the vehicle's safe lock had only one rivet and insisted on repair before departure. His Operations Manager instructed him to proceed regardless; he had the lock repaired and then completed the delivery. He was issued a show cause letter on the morning of 17th December 2015, heard before a disciplinary panel the same afternoon (where he was represented by three union shop stewards), and dismissed by letter dated 18th December 2015. His appeal did not take off, the Respondent saying it did not meet the appeal threshold. The Respondent maintained that his refusal to follow instructions amounted to insubordination, a gross misconduct justifying summary dismissal, and that his terminal dues had been computed and paid. The court held that issuing a show cause letter in the morning and holding the hearing the same afternoon was unfair, as the Claimant had no time to prepare a defence. It further held that the Claimant's insistence on a secure safe was in the employer's best interests and there was no valid reason for dismissal. The court awarded one month's salary in lieu of notice (Kshs. 25,584/-), 12 months' compensation (Kshs. 307,008/-), costs of the suit, and interest at court rates from the date of judgment until payment in full. The prorated leave claim of Kshs. 15,800/- was not included in the final award. Judgment delivered at Nairobi on 20th April 2021 by Nzioki wa Makau, J.

Key legal issues

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01

Validity of the reason for dismissal

Holding

There was no valid reason for the dismissal; the Claimant's refusal to drive with a faulty safe lock was not misconduct

Reasoning

The Claimant, as team leader responsible for the safety of the crew and cash, reasonably insisted on repair of a loose safe rivet before ferrying cash. The court held the refusal to obey the Operations Manager's instruction was in the Claimant's and employer's best interests, since a loose rivet could have led to a breach of the safe and the employer's reputation would have suffered. Disobedience of such a request is not misconduct as properly defined.

p. 3
02

Fairness of the disciplinary procedure

Holding

The procedure was unfair because the show cause letter was issued in the morning and the hearing conducted the same day, leaving no time to prepare

Reasoning

While the court accepted that the interval between accusation and hearing depends on the work and allegations, same-day hearing here deprived the Claimant of any opportunity to prepare a response or defence or obtain witnesses. The employer appeared keen to dismiss. Section 41 of the Employment Act requires a hearing and the employee's witnesses to be heard.

p. 3
03

Entitlement to terminal dues

Holding

The Claimant was awarded notice pay and 12 months' compensation; alleged payment of terminal dues was unproven

Reasoning

The Respondent alleged terminal dues had been computed and paid but produced no proof of payment. The court therefore awarded one month's salary in lieu of notice and the maximum 12 months' compensation under Section 49 of the Employment Act, with costs and interest.

p. 3

Legal principles established

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  • A show cause letter issued in the morning and a disciplinary hearing held the same afternoon does not afford an employee fair procedure, as the employee has no time to prepare a response or defence
  • An employee who raises legitimate safety concerns about cash in transit is acting in the employer's best interest, and dismissing him for refusing to carry cash in a vehicle with a faulty safe lock is without valid reason

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 25,584/-
  2. 2.12 months' compensation for the unlawful and unfair dismissal from employment of Kshs. 307,008/-
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at court rates on the notice pay and compensation from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 42
  • Employment ActSection 43
  • Employment ActSection 44
  • Employment ActSection 45
  • Employment ActSection 47
  • Employment ActSection 49
  • Employment ActSection 35(4)(b)
  • Employment Act (now repealed)Section 17(a) and (g)
  • Constitution of KenyaArticles 41 and 47

Cases cited (6)

  • Evans Kamadi Misango v Barclays Bank of Kenya Limited
    [2015] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • Donald Odeke v Fidelity Limited
    [2012] eKLR
  • Nicholas Daniel Onderi v Mombasa Maize Millers Limited
    [2013] eKLR
  • Magdalene M. Ngea v National Cereals and Produce Board
    [2017] eKLR
  • Vincent Abuya Obunga v Mast Rental Services Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, No. 11 of 2007 (claim for unfair/unlawful termination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Joseph Kinuthia Miguongo v Kenya Kazi Services Limited [2021] KEELRC 1560 (KLR)", Case Analysis (2021). Cause No 1944 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1560/eng@2021-04-20

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