Patrick Lumumba Wakhusama v Edward Ndungu & another [2021] KEELRC 2063 (KLR)
The bottom line
#A Kenyan court ruled that even a guard blamed for a massive theft deserved a fair hearing before being fired.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was unfair and unlawful
There were valid substantive grounds for summary dismissal (theft of property worth Kshs.2,934,570 under the claimant's watch), but the termination was procedurally unfair because the claimant was not accorded a fair hearing under section 41 of the Employment Act
The court found the charge sheet showed the claimant was arrested on the day of the theft, corroborating his account and defeating the abscondment allegation. Though the employer's loss and the position of trust justified substantive grounds for dismissal, section 41 of the Employment Act mandates a fair hearing before termination. The claimant only learnt of the allegations at the police station and was never given audience, so the dismissal was procedurally unfair.
Whether the claimant absconded duty after the theft
The allegation that the claimant absconded failed; the charge sheet showed he was arrested on 21st June 2013, corroborating his account that he was summoned to work and handed to police
The court examined the charge sheet annexed by both parties and found the claimant was arrested on 21st June 2013, the same day as the theft. This corroborated the claimant's narrative that he was called to work on that date and handed over to the police, rather than having wilfully absconded and only resurfacing after arrest.
Whether the claimant was entitled to leave pay
The prayer for leave pay succeeded; section 28 of the Employment Act places the onus on the employer to manage leave
The respondents argued the claimant never requested leave. The court held the onus shifts to the employer to prove employees proceeded on leave, and the respondents filed no such evidence. The claimant was awarded Kshs.79,961.50 for annual leave over 6 years at 21 days per year based on his monthly salary of Kshs.16,500.
Legal principles established
#- Even where valid reasons for summary dismissal exist, the employer is bound to give the employee a fair hearing under section 41 of the Employment Act, 2007
- The onus is on the employer to prove that employees proceeded on leave; it is not enough to claim the employee never requested leave
Court orders
#- 1.Award of Kshs.129,461.50 to the claimant made up of salary for June 2013 (Kshs.16,500.00), pay in lieu of notice (Kshs.16,500.00), compensation for unfair termination (Kshs.16,500.00) and leave (Kshs.79,961.50)
- 2.The Claimant to be issued with a certificate of service as provided under Section 51 of the Employment Act
- 3.Costs awarded to the claimant together with interest from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court Act (claim for unfair termination and terminal benefits)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Lumumba Wakhusama v Edward Ndungu & another [2021] KEELRC 2063 (KLR)", Case Analysis (2021). Cause No 500 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2063/eng@2021-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.