Luke William Mak’Okok v Kisumu Water & Sewerage Co Ltd [2021] KEELRC 1840 (KLR)
The bottom line
#Kenya's Employment Court upheld a driver's dismissal for fuel fraud but ordered his employer to pay two months of overtime.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the disciplinary process
The process complied with section 41 of the Employment Act; the two invitation letters and non-supply of the audit report did not render the process unfair
The Claimant was suspended on 6 February 2013 after recording a statement, invited in writing to a hearing on 8 February 2013 with the invitation copied to his union, appeared before the Disciplinary Committee and made representations with 3 union officials present. He knew the particulars of the charges, had met the auditor and recorded an investigatory statement, and did not demonstrate prejudice from not receiving the audit report.
Substantive fairness of the summary dismissal
The Respondent discharged its burden under sections 43 and 45; the dismissal was for valid and fair reasons
The Respondent called 4 witnesses who established that fuel order no. 6150 was used to fuel vehicle KBS 531D on 2 January 2013, a vehicle not in the Claimant's custody, while another driver was refused fuelling because the same registration had been fuelled the previous day. The Claimant admitted fuelling and did not explain how he came to have the fuel order. The conduct was found to be dishonest and continuing.
Overtime claim
Claimant entitled to overtime for January and February 2011, but quantum to be computed by the Respondent as no formula was disclosed
The Claimant anchored the claim on clause 8 of the appointment letter on hours of work and produced Overtime Claim Forms for December 2010, January 2011 and February 2011. None of the Respondent's 4 witnesses testified on this head. However, the Claimant did not disclose the formula used to reach the pleaded Kshs 581,750/-, so the Respondent was directed to compute and file a schedule.
Gratuity
Claim failed because the Claimant was a member of a pension scheme which was not joined and whose rules were not produced
Section 35(5) & (6) applies only to employees outside a pension scheme or NSSF. Since the Claimant was a scheme member, his remedy lies with the Scheme itself; the Respondent should only facilitate him in good faith if necessary.
Legal principles established
#- Compliance with section 41 of the Employment Act requires notification of the allegations and an opportunity to make oral representations, accompanied by a trade union official where applicable
- Under sections 43 and 45 of the Employment Act, the employer bears the burden of proving valid and fair reasons for dismissal
- Section 35(5) & (6) of the Employment Act on payment in lieu of service applies only where the employee is not a member of a pension scheme or contributor to the NSSF
- Where an employer produces no evidence on a head of claim, the claimant is entitled to it but must still establish the quantum
Court orders
#- 1.Declared that the summary dismissal of the Claimant was fair and consequently compensation and salary in lieu of notice are not available remedies
- 2.Declared that the Claimant is entitled to overtime for January and February 2011
- 3.Ordered the Respondent to compute, pay and file a schedule of the overtime in Court within 30 days
- 4.Ordered that each party bears its own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 41 of the Constitution of Kenya and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luke William Mak’Okok v Kisumu Water & Sewerage Co Ltd [2021] KEELRC 1840 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1840/eng@2021-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.