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ELRCPartially AllowedMemorandum of Claim dated 22nd April, 2016, filed 19th May, 2016 (Cause number not stated in judgment)· [2022] KEELRC 531 (KLR)

Julius Kipyego Butia v St Mathias Mulumba Senior Seminary Tindinyo [2022] KEELRC 531 (KLR)

Employment and Labour Relations Court
10 March 2022
CBChristine N. Baari
2,490 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan seminary that replaced a guard without hearing him first had to pay compensation, even though the theft allegations justified dismissal.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent Seminary on annually renewable contracts from 2004/2005 to March 2015, claimed that his services were unlawfully and unfairly terminated on 13th March 2015 after being accused by Fr. Lelei of stealing a student's phone. He was arrested, charged with handling stolen property and later acquitted, without ever being heard before his employment ended. The Respondent contended that it never terminated him; rather, he absconded after his arrest and was replaced in the interest of the Seminary's security. The court framed two issues: whether the Claimant was dismissed and whether the dismissal was unfair, and whether he was entitled to the reliefs sought. The court held that the stoppage of salary coupled with permanent replacement amounted to a termination. Substantively, the reason for termination—criminal charges relating to theft, given the Claimant's security role and the Respondent's Christian character—was valid and justified. Procedurally, however, the dismissal was unfair, as the Claimant was never issued a show cause letter, never heard, and no disciplinary proceedings were set in motion, contrary to Section 41 of the Employment Act. The court awarded six months' salary (Kshs. 53,850) as compensation for unfair dismissal, considering the Claimant's substantial contribution to his dismissal, one month's salary in lieu of notice (Kshs. 8,975), and 13 days' wages for March 2015 (Kshs. 3,900). Claims for nine months' salary for the unserved contract term and unpaid leave were dismissed, the latter because leave records showed leave was taken. Judgment was entered for the Claimant with costs and interest until payment in full.

Key legal issues

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01

Whether the Claimant was dismissed

Holding

The stoppage of salary and permanent replacement amounted to a termination

Reasoning

The Respondent admitted stopping the Claimant's salary and hiring a replacement on grounds of abscondment. The court found that the Respondent did not show the replacement was temporary; even if the Claimant returned there would be no work, so the conduct implied termination.

p. 3
02

Whether the reason for termination was valid and justified

Holding

The reason was valid, fair and justified

Reasoning

The Claimant, a security guard, was charged with stealing and handling stolen property. The court, persuaded by the Canadian authority in Strowbridge, held that off-duty criminal conduct detrimental to the employer's reputation, especially a Christian institution, constituted a valid reason for termination.

p. 3
03

Whether the termination was procedurally fair

Holding

The dismissal was procedurally unfair

Reasoning

The Respondent never communicated the reasons for termination to the Claimant, issued no show cause letter, and set no disciplinary proceedings in motion. Section 41 of the Employment Act required communication and an opportunity to be heard, even in cases of gross misconduct or abscondment.

p. 3
04

Quantum of compensation

Holding

Six months' salary awarded as compensation, the Claimant having substantially contributed to his dismissal

Reasoning

Applying the Section 49(4) factors, the court found the Claimant's conduct—being charged with theft and absconding duty—substantially contributed to his dismissal, and that he could easily secure comparable employment, warranting only six months' salary rather than twelve.

p. 4

Legal principles established

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  • Stoppage of salary coupled with permanent replacement implies termination of employment
  • Fairness of termination requires both substantive justification and procedural fairness
  • Summary dismissal even for gross misconduct must comply with procedural fairness/natural justice under Section 41(2) of the Employment Act

Court orders

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  1. 1.Six months' salary as compensation for wrongful dismissal at Kshs. 53,850/-
  2. 2.One month's salary in lieu of notice at Kshs. 8,975/-
  3. 3.13 days wages for the days worked in March, 2015 at Kshs. 3,900/-
  4. 4.Costs of the suit and interest until payment in full

Authorities

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Legislation

  • Employment ActSections 41, 41(2), 44(4), 45(2), 49, 49(4)

Cases cited (7)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR, Cause No.955 of 2011
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd
    (2013) eKLR
  • Benjamin Langwen v National Environment Management Authority
    (2016) eKLR
  • Naqvi Syed Qmar v Paramount Bank Limited & another
    (2015) eKLR
  • Strowbridge v Re/Max United Inc
    1994 Can.II 7355(ND SCTD)
  • Loice Otieno v Kenya Commercial Bank Limited
    Cause No.1050 of 2011
  • Alphonce Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction 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, "Julius Kipyego Butia v St Mathias Mulumba Senior Seminary Tindinyo [2022] KEELRC 531 (KLR)", Case Analysis (2022). Memorandum of Claim dated 22nd April, 2016, filed 19th May, 2016 (Cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/531/eng@2022-03-10

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