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ELRCPartially AllowedCause No 361 of 2017· [2022] KEELRC 540 (KLR)

Stephenson Mbithi Ndoni v S.C.L.P. S Samaj School [2022] KEELRC 540 (KLR)

Employment and Labour Relations Court
11 March 2022
3,464 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed as a driver from 25 May 2007 until 25 November 2015, was summarily dismissed after being accused of stealing telephone cables belonging to the respondent school. He claimed Kshs 671,175 comprising unpaid November 2015 salary, notice pay, untaken leave, overtime and compensatory damages, alleging the dismissal lacked notice and due process. The respondent justified the dismissal on grounds of the claimant's misconduct, evidenced by CCTV footage, contending he took the cables for personal use. The court framed three issues: substantive justification, procedural fairness, and entitlement to relief. On substance, the court found the respondent had valid and fair reasons: the claimant's oral testimony contradicted his written statement about where he placed the cables, and the cables could not be traced the following day, supporting the respondent's version. Applying the balance-of-probability standard, the dishonesty breached the trust inherent in the employment relationship. On procedure, however, the respondent failed to prove service of a show cause letter, admitted no disciplinary hearing was convened, and the dismissal letter made no reference to notice or the claimant's explanation, breaching the mandatory minimum standards of section 41 of the Employment Act. The dismissal was therefore unprocedural and unlawful. The court awarded one month's notice pay (Kshs 28,500), 24 days' salary for November 2015 (Kshs 22,800) and compensation of five months' gross salary (Kshs 142,500), totalling Kshs 193,800, with interest and costs against the respondent. Claims for leave and overtime were time-barred under section 90.

Key legal issues

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01

Whether the respondent had valid and fair reasons to dismiss the claimant

Holding

Yes - substantive justification was established on a balance of probability given the claimant's contradictory accounts and the disappearance of the cables

Reasoning

The dismissal letter cited theft of telephone cables. The claimant's court testimony (cables placed on the ground) departed from his written statement (placed in the school bus), casting doubt on his version. The cables could not be traced the following day, lending credence to the respondent's account. Applying the balance-of-probability standard under sections 43 and 45, the respondent had reasonable and sufficient grounds; the dishonesty breached the trust inherent in the employment relationship.

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02

Whether the claimant was accorded a fair hearing before dismissal

Holding

No - the dismissal was procedurally flawed and unlawful

Reasoning

Section 41 of the Employment Act sets mandatory minimum procedural standards. The respondent failed to prove service of the show cause letter, no disciplinary hearing was convened, and the dismissal letter made no reference to any notice or the claimant's explanation. Absence of hearing rendered the dismissal unprocedural and unlawful notwithstanding substantive justification.

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03

Entitlement to reliefs

Holding

Notice pay, 24 days' salary for November 2015 and 5 months' compensation awarded; leave and overtime claims time-barred

Reasoning

Having found procedural unfairness, the court awarded one month's salary in lieu of notice under section 35(1)(c), unpaid salary for November 2015, and compensatory damages of five months' gross salary. Claims for leave from 2006-2007 and overtime were barred by section 90 of the Employment Act as the suit was filed beyond the 12-month limitation after dismissal.

p. 4

Legal principles established

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  • The standard of proof in employment termination is on a balance of probability and an employer need only prove reasons it genuinely believed to exist
  • Section 41 of the Employment Act prescribes the minimum standards of a fair procedure which an employer may only enhance, not diminish
  • A court should not lightly interfere with a sanction imposed by an employer if the sanction was reasonable

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent
  2. 2.One month's salary in lieu of notice: Kshs 28,500.00
  3. 3.Salary for 24 days in November 2015: Kshs 22,800.00
  4. 4.Compensation equivalent to 5 months' gross salary: Kshs 142,500.00
  5. 5.Total award of Kshs 193,800.00
  6. 6.Interest at court rates from the date of Judgment until payment in full
  7. 7.Respondent to bear the costs of the suit

Authorities

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Legislation

  • Employment Actsections 35(1)(c), 41, 42(1), 43(1), 43(2), 44(3) and (4), 45(2)(a),(b),(c), 90
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (10)

  • Pius Machafu Isindu vs Lavington Security Guards Limited
    (2017) eKLR
  • Walter Ogal Anurio vs Teachers Service Commission
    (2013) eKLR
  • Kenya Union of Commercial Food and Allied Workers vs Meru North Farmers SACCO Limited
    Cause No. 74 of 2013
  • Thomas Sila Nzivo vs Bamburi Cement Limited
    (2014) eKLR
  • George Musamali vs Security Services Kenya Limited
    (2016) eKLR
  • Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Bamburi Cement Limited vs William Kilonzi
    [2016] eKLR
  • Mc Kinley vs B.C.Tel.
    (2001) 2 S.C.R. 161
  • Nampak Corrugated Wadeville vs Khoza
    (JA14/98) [1998] ZALAC 24
  • Postal Corporation of Kenya vs Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; claim for unfair termination)

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, "Stephenson Mbithi Ndoni v S.C.L.P. S Samaj School [2022] KEELRC 540 (KLR)", Case Analysis (2022). Cause No 361 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/540/eng@2022-03-11

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