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ELRCPartially AllowedCause No 500 of 2014· [2021] KEELRC 2063 (KLR)

Patrick Lumumba Wakhusama v Edward Ndungu & another [2021] KEELRC 2063 (KLR)

Employment and Labour Relations Court
26 February 2021
2,508 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 even a guard blamed for a massive theft deserved a fair hearing before being fired.

What this practically means

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Executive summary

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The claimant, employed by the respondents from 2007 as a night guard at their shop on the ground floor of Cagen House along Harambee Avenue, was dismissed after a theft at the 2nd Respondent's premises on the night of 21st June 2013 in which property worth Kshs.2,934,570 was stolen. He was summoned to work on the day of the theft, handed over to the police, charged in court, and thereafter informed his contract had been terminated. He claimed wrongful and unfair dismissal and sought terminal benefits including June salary, notice pay, house allowance, severance, leave allowance and 12 months' compensation. The respondents maintained he was summarily dismissed for gross misconduct under section 44 of the Employment Act, relying on Thomas Sila Nzio v Bamburi Cement Limited. The court framed three issues. It found the abscondment allegation failed, as the charge sheet showed the claimant was arrested on the day of the theft. Although the loss suffered and the position of trust provided valid substantive grounds for summary dismissal, the respondents did not give the claimant a fair hearing as required by section 41 of the Employment Act, and the termination was therefore procedurally unfair. The court awarded Kshs.129,461.50 comprising June 2013 salary, one month's pay in lieu of notice, one month's salary as compensation for unfair termination, and leave pay of Kshs.79,961.50 for six years. Service pay failed as unpleaded; house allowance failed as his pay exceeded the minimum wage plus 15% house allowance. The court ordered issuance of a certificate of service and awarded the claimant costs with interest from the date of judgment.

Key legal issues

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01

Whether the termination of the claimant's employment was unfair and unlawful

Holding

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

Reasoning

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.

p. 3
02

Whether the claimant absconded duty after the theft

Holding

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

Reasoning

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.

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03

Whether the claimant was entitled to leave pay

Holding

The prayer for leave pay succeeded; section 28 of the Employment Act places the onus on the employer to manage leave

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Claimant to be issued with a certificate of service as provided under Section 51 of the Employment Act
  3. 3.Costs awarded to the claimant together with interest from date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 44(4)(g)
  • Employment Actsections 35 and 36
  • Employment Actsection 28
  • Employment Actsection 51
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Employment and Labour Relations Court ActSection 12

Cases cited (3)

  • Thomas Sila Nzio v Bamburi Cement Limited
    (2014) eKLR
  • Paramount Bank Limited v Vaqvi Syed Qamara & another
    [2017] eKLR
  • Raymond Cherokewa Mrisha v Civicon Limited
    (2014) eKLR
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

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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, "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.