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ELRCPartially AllowedCause No 580 of 2016· [2022] KEELRC 471 (KLR)

Peter Munywoki Nzivo v Nguvu Construction & Mining Company Limited [2022] KEELRC 471 (KLR)

Employment and Labour Relations Court
18 March 2022
SRStella Rutto
3,384 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded Kshs 200,000 to a worker fired over theft allegations the employer couldn't prove with evidence.

What this practically means

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Executive summary

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The claimant, employed as a plant operator, sued the respondent for wrongful termination on 26th February 2016 on allegations of theft of gypsum materials and operating company equipment outside working hours. He sought compensatory damages, notice pay, leave, overtime, house allowance, a certificate of service, interest and costs. The respondent contended there was a break in employment: the claimant retired in February 2015, was paid Kshs 150,000/= terminal dues, and was re-engaged on a fresh contract, serving only 11 months before summary dismissal which it maintained was justified under section 44 of the Employment Act. The court framed five issues. It found, on the retirement letter, terminal dues computation, payment agreement and deposit slip plus the claimant's own admissions, that the employment was not continuous and a break occurred at the end of February 2015. It held that section 45(3) of the Employment Act, requiring 13 months' continuous service, had been declared unconstitutional in Samuel Momanyi vs SDV Transami & Another and could not bar the claim. On justification, the respondent produced no audit, witness statements or other evidence implicating the claimant, so the allegations remained unsubstantiated and the burden under sections 43(1) and 45(2) was not discharged. On procedure, there was no record of a disciplinary hearing, notification of allegations or invitation of representations, breaching mandatory section 41 requirements. The dismissal was therefore unfair and unprocedural. The court awarded three months' gross salary as compensatory damages (Kshs 150,000/=), one month's notice pay (Kshs 50,000/=), interest at court rates, a certificate of service and costs. House allowance was presumed subsumed in the gross salary, and leave and overtime claims failed for lack of evidence.

Key legal issues

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01

Whether there was a break in the claimant's employment

Holding

The claimant's employment was not continuous from 14th July 2008; there was a break at the end of February 2015, and at termination he was on a second employment contract.

Reasoning

The respondent produced a retirement letter dated 31st January 2015, a handwritten tabulation of terminal dues dated 16th March 2015, an agreement signed by the claimant admitting receipt of Kshs 150,000/= terminal dues, and a deposit slip evidencing payment. The claimant in cross-examination admitted leaving temporarily for two months and being re-engaged at Mwingi. These admissions and documents established that the initial contract had terminated.

p. 3
02

Whether the claimant had a right to claim unfair termination despite serving only 11 months

Holding

Yes. Section 45(3) of the Employment Act, requiring 13 months' continuous employment, was declared unconstitutional in Samuel Momanyi vs SDV Transami & Another and therefore has no legal effect.

Reasoning

The court noted that Lenaola J (as he then was) declared section 45(3) unconstitutional for inconsistency with Articles 28, 41(1), 47, 48 and 50(1) of the Constitution, and that the decision was never challenged on appeal. Consequently the provision ceased to have legal effect from 18th May 2012, and the claimant, though under 13 months' service, retained the right to complain of unfair termination.

p. 3
03

Whether the respondent had cause to dismiss the claimant

Holding

No. The respondent failed to discharge its burden under sections 43(1) and 45(2) of proving valid and fair reasons for the dismissal.

Reasoning

Although theft allegations would constitute grounds for summary dismissal under section 44, they had to pass the test of substantive justification. The respondent produced no audit report, no witness statements, and the auditor did not testify. There was no evidence of how the theft allegations arose. The allegations therefore remained speculative and unsubstantiated.

p. 4
04

Whether the claimant was accorded a fair hearing

Holding

No. The summary dismissal fell outside section 45 of the Employment Act and was unfair and unprocedural.

Reasoning

Section 41(2) is couched in mandatory terms and requires the employer to explain the reasons for termination and hear the employee's representations. Although RW1 claimed a disciplinary hearing took place, there was no record of proceedings, no evidence of notification of the allegations, and no evidence that the claimant's explanation was invited in writing or orally.

p. 4

Legal principles established

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  • An employee serving less than 13 months may still complain of unfair termination because section 45(3) of the Employment Act was declared unconstitutional in Samuel Momanyi vs SDV Transami & Another.
  • The employer bears the burden of proving valid and fair reasons for termination, and unsubstantiated allegations remain bare.
  • Compliance with section 41 of the Employment Act (notification and hearing before dismissal) is mandatory.

Court orders

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  1. 1.Compensatory damages in the sum of Kshs 150,000/= which sum is equivalent to 3 months gross salary
  2. 2.One-month salary in lieu of notice being Kshs 50,000/=
  3. 3.Total award of Kshs 200,000/=
  4. 4.Interest on the amount at court rates from the date of Judgment until payment in full
  5. 5.Certificate of Service to be issued to the claimant pursuant to section 51(1) of the Employment Act
  6. 6.The claimant shall have the costs of the suit

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 41(2)
  • Employment Actsection 43(1)
  • Employment Actsection 44
  • Employment Actsection 45(2)
  • Employment Actsection 45(3)
  • Employment Actsection 47(5)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 51(1)
  • Constitution of KenyaArticles 28, 41(1), 47, 48, 50(1), 159(2)(d)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • George Onyango Akuti vs Security Services Kenya Limited
    (2013) eKLR
  • James Kabengi Mugo vs Syngenta East Africa Limited
    Industrial Cause No. 1476 of 2011
  • Loice Otieno vs Kenya Commercial Bank Limited
    Cause No. 1050 of 2011 eKLR
  • Clouston vs Corry
    (1906) 3 All ER 988
  • Samuel Momanyi vs SDV Transami & Another
    (2012) eKLR
  • Pius Machafu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
  • Janet Nyandiko vs. Kenya Commercial Bank Limited
    [2017] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Munywoki Nzivo v Nguvu Construction & Mining Company Limited [2022] KEELRC 471 (KLR)", Case Analysis (2022). Cause No 580 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/471/eng@2022-03-18

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