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ELRCPartially AllowedCause No 1170 of 2017· [2022] KEELRC 192 (KLR)

Harrison Mwenda Njiru v Nakumatt Holdings Limited [2022] KEELRC 192 (KLR)

Employment and Labour Relations Court
12 April 2022
2,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nakumatt won on procedure but lost on substance: it couldn't prove why a driver was fired over alleged fuel theft, so it must pay four months' salary plus costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 23rd March 2010 as a Shop Assistant and later promoted to Driver of heavy commercial vehicles, was dismissed summarily on 24th January 2017 for alleged fuel pilferage of approximately 145 litres on 13th November 2016 while driving vehicle KAS 585V. He received a notice to show cause on 30th December 2016, responded on 6th January 2017 denying the allegations, attended a disciplinary hearing on 11th January 2017 with a shop steward, and the Union subsequently sought a review which failed. The Respondent neither entered appearance nor filed a response, and the suit proceeded by formal proof. The Court framed two issues: whether the termination was unfair and whether the Claimant was entitled to the reliefs sought. On substance, the Court held that the Respondent failed to discharge the burden under Section 43(1) of the Employment Act to prove a valid reason: the Claimant's defence that 200 litres were insufficient for the Nairobi-Mombasa round trip was never countered, no evidence explained the abrupt fuel drop, and no disciplinary committee minutes were produced. The termination was therefore substantively unfair. On procedure, however, the Court found the Respondent substantially complied with Section 41: the Claimant received the allegations, responded, and attended a hearing with a shop steward, so the process was not procedurally defective. On remedies, the Court held general damages unavailable under the Employment Act, awarding instead three months' salary as compensation under Section 49(1)(c) considering the length of service, the Claimant's contribution to the dismissal, and the absence of prior warnings, plus one month's salary in lieu of notice. Claims for salary arrears, 2016 bonus and unclaimed leave were dismissed for want of pleading and evidence. Judgment was entered with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the termination was substantively unfair

Holding

Yes - the Respondent, having not participated, failed to discharge the burden under Section 43(1) to prove a valid reason; the Claimant's defence (insufficient fuel for the journey) was uncontroverted and there was no evidence explaining the fuel drop or the methodology of detecting pilferage

Reasoning

The employer bears the burden under Sections 43 and 45 to prove a valid and fair reason. The Respondent did not enter appearance or tender evidence. The Claimant's explanation that 200 litres were insufficient for the Nairobi-Mombasa round trip was never countered, no evidence explained the fuel drop, and no disciplinary minutes were produced, so the allegation and the evidence before the committee are unknown. The Claimant's evidence is therefore unconverted and termination unfair for want of substantive justification.

p. 3
02

Whether the termination was procedurally unfair

Holding

No - the Respondent substantially complied with Section 41; the Claimant was given a show-cause notice, responded, was invited to a hearing with liberty to bring a witness or shop steward, and attended with a shop steward

Reasoning

The notice to show cause contained the allegations with attachments; the Claimant responded denying the allegations; the disciplinary meeting letter allowed him to bring a witness or shop steward, and the termination letter shows he attended with a shop steward. The Claimant did not puncture this procedure, and the Union sought a review afterwards. The Court found substantial compliance with Section 41 and held the procedure not defective on a balance of probabilities.

p. 4
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What remedies flow from the finding of substantive unfairness

Holding

Compensation equivalent of three months' salary under Section 49(1)(c) and one month's salary in lieu of notice; general damages, salary arrears, bonus and unclaimed leave claims dismissed

Reasoning

Having found unfairness, the Claimant is eligible for Section 49(1)(c) compensation, assessed considering his service of about six years and 10 months, his substantial contribution to the dismissal given the seriousness of the fuel pilferage allegation, and the absence of prior warnings or disciplinary hearings. General damages are unavailable under the Employment Act. Arrears, bonus and leave claims failed for want of pleading and evidence.

p. 4

Legal principles established

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  • For termination of employment to be fair, the employer must have both substantive justification and fair procedure
  • Where the employer fails to prove the reason for termination, the termination is deemed unfair
  • General damages are not available in termination claims; the only compensatory relief is Section 49(1)(c) capped at 12 months' salary

Court orders

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  1. 1.One month's salary in lieu of notice
  2. 2.Equivalent of three months' salary as compensation for unfair termination
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at Court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 49(4)
  • Labour Relations Act, 2007
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Mombasa Sports Club
    Cause No. 440 of 2013
  • Kenfreight (E.A) Limited v Benson K. Nguti
    [2016] eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    [2019] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over a termination of employment claim under the Employment Act, 2007

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, "Harrison Mwenda Njiru v Nakumatt Holdings Limited [2022] KEELRC 192 (KLR)", Case Analysis (2022). Cause No 1170 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/192/eng@2022-04-12

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