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ELRCPartially AllowedCause No 671 of 2016· [2022] KEELRC 931 (KLR)

Edwin Alala v Amiran Kenya Limited [2022] KEELRC 931 (KLR)

Employment and Labour Relations Court
31 January 2022
MOMaureen Onyango
4,658 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ordered Amiran Kenya to pay a dismissed mechanic over Kshs.564,000 because it could not prove any theft or follow fair dismissal procedures.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Workshop Mechanic from 25th February 2008 until his summary dismissal on 19th November 2015, claimed his dismissal was unfair. The dismissal followed an alleged theft of polythene sheets (jumbo rolls) and agricultural chemicals at the Respondent's premises on 19th and 20th September 2015, while the Claimant was on duty and custodian of the gate keys. He sought compensation under Section 49(1)(c) of the Employment Act, one month's salary in lieu of notice, pay for 71 leave days, a certificate of service, reinstatement or salary up to retirement age, costs and interest. The Respondent maintained it had a valid reason (theft attributable to the Claimant's negligence), that fair procedure under Section 41 was followed, and that the Claimant was paid his dues. The court framed two issues: whether the termination was valid procedurally and substantively, and whether the Claimant was entitled to the reliefs sought. The court found the Respondent produced no investigation report, no witness statements, and no proof that any goods were lost at all; the allegations shifted between the suspension letters, show cause letter and dismissal letter; the CCTV cameras were off with no explanation; and the Transport Manager with duplicate keys was never called. The court held the dismissal was unfair both substantively and procedurally. It awarded 12 months' compensation (Kshs.420,000), one month's salary in lieu of notice (Kshs.35,000), 71 leave days' pay (Kshs.109,844.10), and a certificate of service. Reinstatement was refused as out of time, and salary up to retirement age was refused as unjust enrichment. The Respondent was ordered to pay the Claimant's costs, with interest from the date of judgment.

Key legal issues

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01

Whether the summary dismissal was substantively valid

Holding

The Respondent failed to prove there was any loss of goods at all, let alone a valid reason for dismissal

Reasoning

No investigation report or witness statements were produced; the Claimant was never informed of the alleged lost chemicals; the suspension letters referred to polythene sheets while the show cause letter referred to 'lost goods'; CCTV cameras were off with no explanation; the Transport Manager with duplicate keys was not called; and the Claimant had held the keys for five years without incident and held an appreciation letter. The court found no proof of any loss of goods.

p. 6
02

Whether the dismissal followed fair procedure under Section 41 of the Employment Act

Holding

The Respondent did not comply with fair procedure as set out in Section 41

Reasoning

Although a disciplinary hearing was held and the Claimant responded to the show cause letter, he was never informed of the lost chemicals from the stores and given an opportunity to respond to that allegation. The allegations were inconsistent across the suspension letters, show cause letter and dismissal letter, undermining the procedural fairness of the process.

p. 6
03

Whether the Claimant was entitled to 12 months' compensation, notice pay and leave pay

Holding

The Claimant was awarded 12 months' compensation at Kshs.420,000, one month's salary in lieu of notice at Kshs.35,000, and Kshs.109,844.10 for 71 leave days not taken

Reasoning

Having found the termination unfair, the court exercised its discretion under Section 49 of the Employment Act considering length of service (about 8 years) and the respondent's conduct, awarding 12 months' compensation. Notice pay was awarded under Sections 36 and 49(1). The leave claim was unrebutted by the Respondent and therefore allowed.

p. 7
04

Whether reinstatement or salary up to retirement age could be granted

Holding

Reinstatement was refused as the 3-year limitation period under Section 12(3)(vii) of the ELRC Act had lapsed; salary up to retirement age was refused as unjust enrichment

Reasoning

The court noted reinstatement is only available within 3 years of termination, which period had expired since the termination in November 2015. On salary to retirement, the court relied on Elizabeth Wakanyi Kibe v Telkom Kenya Limited and D. K. Njagi Marete v Teachers Service Commission, holding an employee cannot be paid for work not done.

p. 8

Legal principles established

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  • For unfair termination, the employer must prove both a valid reason and that fair procedure was followed; failure on either ground renders the termination unfair
  • The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer
  • An employee cannot be awarded remuneration for a period not worked, as this would amount to unjust enrichment

Court orders

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  1. 1.12 months' compensation for unfair termination of Kshs.420,000.00
  2. 2.One month's salary in lieu of notice of Kshs.35,000.00
  3. 3.Payment for 71 leave days not taken of Kshs.109,844.10
  4. 4.Total judgment of Kshs.564,844.10 in favour of the Claimant
  5. 5.Issuance of a certificate of service to the Claimant under Section 51 of the Employment Act
  6. 6.The respondent shall pay claimant's costs for the suit
  7. 7.Interest shall accrue from date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 45(2), Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43, Section 47
  • Employment Act, 2007Section 44 sub section 4(c)
  • Employment Act, 2007Section 35(5), Section 36, Section 49(1), Section 49(4)
  • Employment and Labour Relations Court ActSection 12(3)(viii), Section 12(3)(vii)
  • Constitution of Kenya, 2010Article 159(2)(d), Article 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (10)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    (2019) eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others
    S.C Application No. 2 of 2011
  • Jacob Orlando Ochanda v Kenya Hospital Association Limited T/A Nairobi Hospital
    (2019) eKLR
  • Mary Mutanu Mwendwa v Ayuda
    (2013) eKLR
  • David Gichana Omuya v Mombasa Maize Millers Limited
    (2014) eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 Others
    (2019) eKLR
  • Sotik Highlands Tea Estates Limited v Kenya Plantation and Agricultural Workers Union
    (2017) eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Limited
    [2014] eKLR
  • D. K. Njagi Marete v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (referred to in submissions as Section 12(3)(viii) and Section 12(3)(vii))

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, "Edwin Alala v Amiran Kenya Limited [2022] KEELRC 931 (KLR)", Case Analysis (2022). Cause No 671 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/931/eng@2022-01-31

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