Maina & another v Gititu Coffee Growers Cooperative Society Limited (Cause 2192 of 2017) [2022] KEELRC 16 (KLR)
The bottom line
#Kenya's Employment Court ruled that even when employees are arrested for theft, an employer must still follow proper termination procedures or pay compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants were casual employees
They were not; serving beyond three months converted their engagement to term employment under Sections 2 and 37(5) of the Employment Act
Section 2 defines a casual employee as one paid daily and engaged for no longer than 24 hours at a time. The Respondent's manager gave no documentary proof of three-month agreements. Following Allogoh and Silas Mutwiri, employment exceeding three months converts by law to a term contract.
Whether termination was substantively justified
The Respondent had a good reason to terminate given the theft during their watch, subject to statutory compliance
The coffee beans were stolen on the night the Claimants served as night guards, providing a valid reason. However, substantive justification alone does not render a termination fair; procedure must also comply with Sections 41, 43 and 45.
Whether termination was procedurally fair
It was not; no notice to show cause, hearing or termination letter was produced
Section 41 requires explanation of grounds, hearing of representations, and presence of a chosen fellow employee. The Respondent produced no notice to show cause, invitation to a hearing, disciplinary proceedings or termination letter, and assumed arrest ended the employment, which is unsustainable in law.
Entitlement to reliefs
Declaration, 17 days' July 2014 salary, accrued leave, service pay and two months' compensation awarded; notice pay and general damages refused
Claims beyond July 2014 fail for want of services rendered; leave and service pay are statutory entitlements; general damages failed because the Respondent merely reported theft to police who independently investigated; compensation moderated to two months under Section 49(4).
Legal principles established
#- Casual employment automatically converts to term status where an employee serves beyond three consecutive months
- A valid reason for termination alone is insufficient; the employer must also comply with the procedural requirements of Section 41 of the Employment Act
- An employer cannot treat an employee's arrest and prosecution as terminating the employment relationship without following the prescribed termination process
Court orders
#- 1.Declaration that termination of the Claimants' employment was unfair
- 2.Judgment for each Claimant for: salary for 17 days of July 2014; accrued leave of two years; service pay for two years; and the equivalent of two months' compensation
- 3.Counsel for the parties to compute the respective amounts for leave, service and compensation and file the same in Court within 30 days for adoption with or without modification
- 4.Salary to be computed on the basis of the prevailing minimum wage of management guards according to the relevant Regulation of Wages (General) Amendment Orders
- 5.Costs of the suit to the Claimants
- 6.Interest at Court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina & another v Gititu Coffee Growers Cooperative Society Limited (Cause 2192 of 2017) [2022] KEELRC 16 (KLR)", Case Analysis (2022). Memorandum of Claim dated 1st November 2017 (ELRC claim; Criminal Case No. 822 of 2014 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/16/eng@2022-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.