Kennedy Ochidi v One Acre Fund [2022] KEELRC 887 (KLR)

The show cause letter and dismissal letter both cited negligence resulting in loss of property worth over a million shillings, a ground for summary dismissal under Section 44. The Claimant admitted the break-in and reported it to police, and in the disciplinary proceedings admitted he used the keypad to arm the alarm, that he received no alert, and that he had made a mistake using the keypad for the first time. The court therefore found the reason genuine and valid under Section 43.

Although the Claimant was given a show cause letter, responded to it, and was heard, there was no evidence he was informed of his right to be accompanied by a person of his choice or shop floor union representative; the notice of hearing did not state this and the minutes did not mention it. Section 41 is mandatory, as held in Postal Corporation of Kenya v Andrew K. Tanui. The failure breached procedural fairness, rendering the termination unfair despite the valid reason.

The Respondent defended the deduction as offsetting an alleged loss of Kshs. 1,288,700/- from the break-in, but produced no evidence of any audit or valuation of the stolen property. Section 19 of the Employment Act does not permit withholding entire wages as a disciplinary sanction; only Section 80, during an illegal strike, permits such withholding, as upheld in Peterson Ndung'u & 5 others v Kenya Power & Lighting Company Limited. The withheld salary of Kshs. 25,705/- was accordingly awarded.

The Respondent argued the Claimant's failure to appeal within 30 days indicated acceptance of the dismissal. The court found the witness statement and response did not disclose the Claimant was informed of any right to appeal, nor did the disciplinary proceedings record it. Further, the dismissal letter issued the day after the hearing. The court rejected the submission.